J u dg e St eph en M

. B ev i l pr es i ded ov er t h e pet i t i on er ’ s t r i al bu t u n abl e t o c on du ct t h e pos t

- con v i ct i on 1
h e a rin g d u e to il lne ss. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE Se pte m be r 26, 200 6 S es sio n



### HARVEY PHI LLIP HES TER v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Ham ilton Coun ty

No. 238877 Douglas A. Meye r, Judge

No. E2005-01607-CC A-M R3-P C - F iled Fe bruary 13, 2007

Th e Sta te app e a ls the Ha mil ton Cou nty Cr imi na l Co urt’ s g ranti ng the pe tit ion e r’ s r e qu e st f or po stconviction re lief fr om his convictions for two c o u n t s o f s ec ond deg ree murder and one count of att empt e d s e c on d d e g re e mur de r ande ff e c tiv e sixty -t wo -y e a

r s e nte nc e . In th is a

pp e a l, the Sta te claims that the trial co u rt er re d b y concluding (1) that the pe titioner rec eived the ine ffe ctive

a ssi sta nc e of

tr ia l c ou ns e l a nd(2) th a t th e pe tit ion e r d id n ot v olu nta ri ly a ndkn ow ing ly

wa ive his rig ht to a tw e lv e

- me mb e r ju r y v e r d ic t. U p o n r e v ie w o f th e r e c o r d a n d th e p ar ti e s ’ b r ie fs, we conclude that the trial court erre d by g ranting the petit ioner’s request for post-conviction re lief and

re ve rs e the jud g me nt o f the tr ia l c ou rt

.
Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s R e ve r se d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which A L AN E. G L EN N and J.C. M C L IN , J J
., joined.

Gary L . Ander son, Knox ville, Tennesse e, for the appe llee, Ha

rvey Phill ip Hester.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; John H. B le ds oe , Assis ta nt A tto rn e y Ge ne ra l; Wil liam H. Cox
, I I I
, District Attorney Gene ral; and Rodney C. Strong
, Assistant D istrict Attorney Gene ral, for

the appe llant, State of Tenne ssee.

OP IN ION

I. F ac tu al B ac kgr ound
The pe titioner was cha

rg ed with two counts o f fi rs t deg ree preme ditated murder and one count of attempted first deg ree preme ditated murder , and a trial was he ld in September 1995. The 1-2-

jury convicted the petitioner of two c ounts of second de g ree murder and o n e co unt of attempted

se c on d d e g re e mur der, and th e pe tit ion e r r e c e ive d a n e ff e c tiv e se nte nc e of

sixty -t wo y e ars in confine ment. On direc t a ppeal, this c ourt summarized the fac ts unde rly ing th e p et i t i oner’ s
c on vic tio ns a s f

oll ow s:

On Au g ust 8, 1994, Richard Serna (Richar d), his daug hter, Ang ela, a nd his br other, Paul Serna (Paul), drove to the “blue hole”

on Suc k Cr e e k Ro a d at Sig na l Mo un ta in t o s wi m. Up on the ir arriva l, the defe ndant was in the parking lot. Ri char d Serna briefly eng ag ed in friendly

conver sation with the defe ndant af ter whic h the Serna s walked to the sw imming ar ea. Sometime later , the def endant approa ch ed t hem and a sked if they had see n his wallet. The de fe nd a nt s e arc he d u ns uc c e ssf ull y for hi s wa lle t a ndthe n le ft

. Ang ela de scribed this exchang e as “ pleasa nt.”

Ab ou t fi ve min ute s la te r, the de fe nd a nt re turne d and again inquired about his wallet. He p ointed out that the Sernas we re the only others in the ar ea and explained that his wa llet contained a round $2,200. The de fenda nt le ft but soon returne d and insisted his wallet had to “be here somewher e.” When he mentioned that he ha d a g un in h is c ar, the Se rn a s w e re su rpr is ed. P a ul p la c e d a kn if e in h is po c ke t bu t ma de no thr e a ts t o th e de fe nd a nt.

Af t er t h e d ef en d an tl ef t , t h e S er n as gat h er ed t h ei r b el o n gi n gs and re turned to their c ar. When they reache d the par

king lot, the defe ndant aske d permission to search. Whil e the Sernas allowe d a

sear ch, the de fenda nt did not find his wallet. The Sernas then drove

away

. A f

te r d r iv in g [o n ly ] a

s h o r t d is tan c e , th e Se r n a s n o te d the defe ndant was f

ollowing them. He rammed the back of t h eir c ar
sever al times and, at one point, the Sernas’ c ar “ fishtailed” a round a bigg er truc k.

Attr ial , An gela t est if

ied th at t he d efen dan t s tr uckthei r v e hic le in the rea r “ove r and ove r ag ain

. . . continuously the whole way

down the mountain.” She estimated that their vehicle was struck more than twenty times. As their ca

r passe d by

th e Suck Creek B oat Ramp, Ang ela y elled out the window asking for someone to ca ll the police.

She rec alled that at the bottom of the mountain, Suck Creek Road terminates at its interse ction with Sig nal Mountain Boule vard,

a fo ur -l a ne ro a d. She re me mbe re d th a t th e de fe nd ant ramme d th e ir

car into the four-la ne roa d. At an o t h er intersection, only a short distance a way , Richard a nd Paul Serna stopped th ei r v ehicle and-3- confr onted the def

endant. Paul dre w his knife f ro m his pocket but held it to his side. Ang ela testified that an arg ument ensued a bout the

wa lle t bu t th a t he r n e x t mem ory wa s w akin g up in the ho sp ita l. I nitiallyunable to re cog nize her moth er , Ang ela Serna had suf fer ed

a broken pelvic bone and a broke n leg . All of her f acia l bones wer e broken. She r equire d bone g raf t surg ery on her nose

.

J ames Pilkington, who observed t h e confr ontation at the int e rs e c tio n o f M ou ntain C re e k Ro a d a ndSig na l Mo un ta in Boule vard, testified that the S erna s appea red to be frig htened. When Pilki ng ton stopped at a ne arby Conoco to call the police, he noticed the Serna s’ vehicle drive by and thoug ht the al t ercation might ha ve ended. When he drove a round a curve, how ever , he saw that the Sernas ha d been involved in a wre ck.
Mark Payne, who a lso saw the conf rontatio n b etwee n the Se rna s a ndthe de fe nd a nt at th e int e rs e c tio n o f S ig na l Mo un ta in Boule vard a nd Mountain Creek Road, te stified that either Richa rd or Paul wa s sta nd ing on the sid e of the ro a d wi th a te rrif ie d lo ok on his fac e. He saw that individual run and then observed the driver of the Se rn a ve hic le sto p to a llo w h im t o e nte r. Th e de fe nd a nt’ s v e hic le “shot rig ht throug h the li gh t and st arte d chasing [t he Serna s’] Ni ssan. ” Pay ne de sc ri be d th e de fe nd a nt a s “ c ha sin g [the vic tim s] down.” Michae l E ug ene H ood, who also witnessed the confr ontation

a t th e int e rs e c tio n, c or

ro bo rate d Pay ne ’s ve rs ion of the e ve nts

.

Jam es De Sha , w ho wa s tr a ve lin g on Sig na l Mo un ta in B ou le va rdonthe da y

of th e wrec k, te sti fi e d th a t he sa w a wh ite Cutlass ram a re d Nissan Pulsar on two occ asions. He also saw the Cutlass move t o t h e outs ide lane to the right side of the Nissan and “turne d in on him
, ” ra mming into the bac k bumper of the Nissan, sp inn ing it sid e way s. He re c a lle d th a t th e Se rn a s’ Ni ssan s lid sid e way s, be c a me a ir

bo rn e , fl e w a c ro ss a re d Th un de rb ir d, a ndon to the hood of a

g ree n Dodg e. DeSha c laimed that the def endant, who was driving t h e C u t l ass, grinned a s he drove away at a hig h rate of sp e e d. De Sha wa s abl e to g e t th e lic e ns e plate nu mbe r o f the Cut la ss.

Offic er Charles Russe llo f th eCh att an o o g a

Po lic e De partment inv e sti g a te d th e a c c ide nt. He fo un d th re e c ars wi th “ a co ns ide ra ble

a mou nt o f d a ma g e .” Th e vic tim s’ c ar c on ta ine d s e ve ra l be e r c ans. At approximately

1:00 A.M. the day

afte r the wr eck, he located the Cutlass drive n by the defe ndant. The lice nse tag s had bee n remove d. Whil e ther e we re no de nts to the front of t he defenda nt’s car , the front-4- rig ht fende r did have a pre sence o f red pa int, the color of the Serna
ve hic le . T he de fe nd a nt, wh o h a d s uff ere d a bla c k e y e , v olu nta

ri ly turned himself in to police.

Dr. Char les Har lan per formed an autopsy o n Paul Serna. Death resulted fr om a ring fra cture of C -1 and C-2 cervical vertebra e, wh ic h is the are a

wh e re the skull fi ts o n to the ve rt e br a l col umn . H is blood alcohol content wa s .03 perc ent, wh i ch indicate d he had

c on su me d le ss tha n tw o u nit s o f a lc oh ol.

Richard Serna, who ha d a blood alcohol c ontent of .032 perc ent, was a

quadr ipleg ic due to the br ain injuries suffe red in the

acc ident. He died on J anuary 20, 1995, sever al m onths afte r the c ar
wre ck. Ac cording to Dr. F rank King, the Hamilton County Medica l Exa min e r, the c a us e of

de a th wa s “a c ute br on c hia l pn e umo nia du e to chronic medical de bilitation due to head injury .”

A tt o r n e y Jo e M c B r ie n , w h o r e p r e s e n te d th e d e f e n d a n t in a civil case , appea

red a s a def

ense w itness. He testifie d t h at the d e f e n d a n th a d r e c e i v e d a

s e t t l e m e n ta w ar d o f $ 3 5 1 8

. 7 5 s i x d a ys be fo re thi s in c ide nt. He re c a lle d th a t the de fe nd a nt r e c e ive d c a sh in that a mou nt.

J ohn Hac kney , who lived at the f oot of S uck Cree k Mountain,

was t ra veling to his residence on the day of the wr eck, w hen he passed a car and then saw a billfold “blow up in the air.” He stopped his ve hic le a ndfo un d th e bil lf olda ndla

rg e de no min a tio ns of

c a sh ly ing on the g round. He testified that he picke d every t h i n g up and le ft . T he ide nti fi c a tio n in the bill fo ld w a s th a t of the de fe nd a nt. Hac kney admitted that he kept the money

. He burned t he wallet. He

conce ded that he ha d brag g ed to his co-wor kers a bout findin g the cash, which is how t he defense attorney s eventua lly located him. He acknow ledg ed that he ne ver notified the police about f inding the

wa lle t.

. . . .

D a v id B la c k

b u r n te s ti f

ie d th a t h e w a s w ith th e d e f e n d a n t at the tim e of th e wreck. An ind ivi du a l name d Joh n a nda g ir l w ho se name he could not rec all wer e also prese nt. Bla ckburn r eca lled that the def endant ha d a larg e amount of money in his possession before they went to t h e s wi mming hole. B lackburn testified that he

se pa rate d f ro m th e de fe nd ant a ndthe n s a w h im i n th e pa rking lot

.-5- His ey e wa s swelling shut a nd his nose or mouth was “buste d.” The de fe nd a nt c la ime d th a t th e pe op le pu lli ng a way in ano the r c ar h a d ju st

ro bb e d h im.

Bla ckburn te stified that th e defe ndant followed the Sernas down the mountain and bumped the ir ca r seve ral times. W hen they

rea ched Sig nal Mountain Boule vard, the defe ndant and John got out of their ve hicle. He saw one of the Serna s approa ch wa ving a knife; wh e n th e Se rn a s r e turne d to the ir ve hic le , the de fe nd a nt c on tin ue d to follow them. Bla ckburn testified that he sug g ested that the de fenda nt continue to follow so they could eventua lly call the police . Bla ckburn claimed that the driver of the Nissan kept swe rving in and out in an attempt to keep the de fenda n t from driving along side. He te stified that afte r t he accident, the defe ndant drove him to his car. B lackburn
was c harg ed with “a cce ssory afte r the fa ct” but the c harg es we re dismiss e d. He a cknowledg ed prior c onvictions for theft, r obbery , and dr ug -r e la te d o ff

e ns e s.

State v. Har vey

Phill ip Hester, N o. 03C01-9704-CR-00144, 1998 Tenn. Crim. App. L EXI S 600, at **2-9 (Knoxville, J une 4, 1998). This co u rt reve rsed the pe titioner’s second de g ree murder convictions bec ause the trial court ha d ref used to instruc t the jury on vehicular homicide as a le sser included off

ense of first deg ree murder. I d. at **11-22. Howeve r, our supreme court remande d the

case for r econside ration in light of State v. D ominy , 6 S.W .3d 472 (Tenn. 1999) , and this court subsequently

aff irmed the pe titioner’s convictions

. S tate v. Ha rvey Phill ip Hester, N o. 03 C01 -9 70 4- CR- 00 14 4, 20 00 Te nn . Crim . App . L EX I S 27 5 (K no xvill e , Mar . 22, 20 00 ), pe rm . to appea l denied, (Te nn. 2000).
The pe titione r t i m el y

fi l ed a p et i t i o n fo r p o s t -c o n v i ct i o n re l i ef
, cl aim ing ine ffe ctive assistanc e of counse l and prosecutorial m isconduct at trial. I n an ame nded petition, the petitioner c laimed that he re ceive d t h e i n ef

fec tive assistance of counse l because his trial attorney s unilaterally decide d during his trial to abandon a ve hicular homicide defe nse and a rg ue to the jury

that the petitioner wa s innocent of a ll charg es “ even though c ounsel knew f rom discovery

prior to trial, and f

rom the evidenc e pre sented at the trial, that the State’s evidenc e at a minimum established neg lige nt and/or

re c k l e s s c o n d u c t

. ” H e a l s o c l a i m e d t h a th e r e c e i v e d t h e i n e f f e c t i v e a s s i s t a n c e o f

c o u n s e l b e c a us e h i s a t t o r n e ys c o e r c e d h i mi n t o w a i v i n g h i s r i g h tt o a t w e l v e

- m e m b e r

j u r y.
The pe titioner’s lead c ounsel at trial and on dir ect a ppeal testified that the petitioner’s mother hired him to repr esent the petitioner and “wor ked herself to death to pay [for] i t.” The pe titioner had been c harg ed with two counts of f irst deg ree murder and one count of attempted first de g ree murder, and “w e thoug ht a l es s er offense , like vehicular homicide, . . . would be a g ood verdic t; however
, we trie d for no c onviction.” At some point during the trial, the trial c ourt informed the defe nse that it was g oing to instruct the jury on criminally

neg lige nt homicide and re ckless homicide but wa s not g oing to instruct the jury

on vehicular

homicide. Counsel said that upon learning the trial court wa s-6-

not going to give a vehic ular homicide instruc tion, “we did ar g ue about ne g lige nce, and that it was not an intentional thing.” Counsel stated that the def ense a lso “didn’t think it was reckle ss.”

L ead c ounsel testified that at the e nd of the trial, a juror g ot sic k an d h ad t o be dismissed from the jury . Counsel had pre viouslybeen in a simil ar situation in fede ral court and had le arne d that a fe dera l jury

could b e co m p ri sed of less than twe lve member s. Ba sed on what he learned during that fede ral c ase, c ounsel did not believe the pe titioner had a c onstitut ional rig ht to a twelvemember jury

in this case. Ne verthe less, he conf err ed with the petitioner and told the pe titioner about the option of a mistrial. He also told the petit ioner that if the petit ioner acce pted a mistrial and wa s retrie d, “I just don’t think y our mother c an af ford us.” He testified that he be lieved that stateme nt play ed a sig nificant role in the petit ioner’s decision to waive his right to a twe lve-membe r jury , that the pe tit ion e r w a s n ot an e du c a te d man, that he didno t be lie ve the pe tit ion e r m a de the de c isi on to waive his rig ht to a mistrial, and that “we probably made [the dec ision] for him.”

L ead c ounsel testified t hat t he trial court also was una war e of the petitioner’s c onstitut ional rig ht to a twelve- member jury and that no one told the petitioner he had such a rig ht. Howeve r, he acknow ledg ed that the trial court tol d the defense it had prepare d a written waiver of the rig ht to a t we l v e- m em b erj u ry “t o b e o n t h e s af e s i d e” an d t h at t h e t ri al co u rt h ad t h e p et i t i o n erre ad an d s i gn the wa ive r. Cou ns e l st a te d th a t if he ha d kno wn the ri g ht t o a tw e lve -m e mber jury

wa s a
c on sti tut ion a l rig ht, “ I wo uld n’ t hav e le t it be my de c isi on rathe r tha n h is. ” He state d th a t A ng e la Serna had been a sy mpathetic witness for the State and had “hurt the defe nse to the nth deg ree ” and that based on he r testimony , the def ense should have acc epted a mist ri al

. He ac k nowledg ed that Jame s De Sha

w a s a l s o a n e f

f e c t i v e w i t n e s s f

o r t h e S t a t e b u ts a i d t h e d e f e n s e w a s ab l e t o c ro ssexamine him “pretty

g ood.” He stated that if the de fense had ac cepte d a mistrial, it could have plea barg ained with the State a nd could h av e fi l ed a m otion for a c hang e of ve nue due to e x cessive pu bli c ity . H e state d th a t w he n h e a dv ise d th e pe tit ion e r no t to a c c e pt a mis tria l, h e didno t a dv ise the petitioner a

bout any of these serious problems with the petitioner’ s case . He sa id that he did not believe he acte d eff

ectively when he advised the pe titioner to turn down the trial cour t’s offe r for

a mistrial.

On cr oss-examination, lead counsel testified that he and co-c ounsel g ave the petitioner the best defe nse they could and acknow ledg ed that the jury acquitted the pe titioner of the most serious char g es. He stated that he be lieved he a rg ued during closing arg uments that the petitioner had a cted neg lige ntly

rathe r than re cklessly . Reg arding the dec ision t o wa i v e a twelve-me mber jury , lead

co u n s el s tated that it was “ a hec tic decision and a quick dec ision we had to make .” He acknow ledg ed that the tria l court questioned the pe titioner about the waive r on the re cord, that the trial court informed the petitioner t h at i t co u l d decla re a mistrial, and that the trial court had the petitioner sig n a wa iver form. Howeve r, he state d that if he a nd the trial court had known the right to a tw e lve -m e mbe r j ury

wa s a c on sti tut ion a l r ig ht, he wo uldno t ha ve pe rs ua de d th e pe tit ion e r t o waive that rig ht and the trial c ourt “would ha ve handle d it differe ntly , too.”

Co-counsel tes t i fied that he and lea d counsel talke d with the petitioner about the twe lvemember jury

issue but that he did not remembe r the de tails of the conve rsation. He sa id, “I think we-7-

discussed some of the witnesses . . . that ha d testified. I think we discussed Ang ela Serna and how eff ective she was.” He a lso stated that “ther e was g ive and take about the witnesses and what would, y ou know, be involved in a r etrial.” Co-counsel stated that he did not believe D eSha had be en as a n eff ective w itness for the State “ as it looks in the recor d” and that the defe nse did not hire an ac cident

re c on str uc tio n e xpe rt

be c a us e the re we re no larg e de nts in the bu mpe r o f the pe tit ion e r’ s c ar t o ind ic a te the pe tit ion e r h a d r a mme d th e vic tim s’ c ar. Th e de fe ns e a lso didno t hi re a n e xpe rt be c a us e
co u n s el d i d not believe the pe titioner’s mother could a ffor d it and beca use the de fense had photogr aphs which did not support the State’s the ory . Howeve r, he stated that if the trial court had decla red a mistrial, the defe ns e possiblywould have hir ed an a ccide nt rec onstructionist for the petitioner’s re trial. On cr oss-ex am i n ation, co-c ounsel testified that if the pe titioner had wa nted a mis tr ia l, the de fe ns e wo uldha ve le t hi m ha ve on e a nd that he be lie ve d h e a ndle a d c ou ns e l ma de it

c le ar t o th e pe tit ion e r that he c ou ld r e c e ive a mis tr ia l.
The pe titioner testified that when he first met with lead c ounsel, counsel told hi m,“I can’ t save y ou from g oing to prison, . . . but I can c ut the time down” and that he would proba bly serve a two- to six-y ear

sentenc e for

vehicular homicide. After the trial court ref used to c harg e vehic ular homicide to the jury , the petitioner’s attorney s told him they wer e going for a not-g uiltyverdic t, and he a c kn ow le dg e d th a t hi s a tto rn e y s sw itc he d f rom a ve hic ula

r h omi c ide de fe ns e to a

no t- g uil ty defe nse. He stated t hat t he defense “spent all trial arg uing [ he] was guilty of som ething
, and then

a t th e la st m inu te we g o in a ndc los e wi th a no t g uil ty

ve rd ic t.” He state d th a t sw itc hin g to a no tg uiltystrateg ywas “ insane” and that if he had known then w hat he knows now , he would have arg ued that he w as g uilty

of a le sser include d offe nse. He stated that his attorney s never talked about

rec kless homicide as a n alternative defe nse and that lead counse l controlled the de fense ’s dec isionmaking throug hout the trial.
The pe titioner testified that afte r a sick jur or wa s excused from the pa nel, his attorney s met with him in a holding ce ll. They explained to him t hat he c ould have a mistrial, but he did not know what that mea nt and told lead counse l, “I ain’t never been t o a jury trial” and “I don’t know wha t’s g oin g on . I ’m

pu tti ng my lif

e in y ou r ha nd s. ” L e a d co un se l told the pe tit ion e r that he kne w h ow to

rea d a jury and that “I think we got a g ood shot at taking this 11-man jury .” The petitioner aske d cocounsel what he thoug ht, and co- counsel told him, “Ye ah, I think we g ot a g ood chanc e at it, too.” L ead c ounsel told the petitioner that the petitioner’ s mother would not be able to a ffor d his service s ag ain, and neither attorney told the petitioner that he ha d a constitutional rig ht to a twelve- member jury or a right to appointed c ounsel for a retria l. The petitioner stated that if he had ac cepte d the trial court’s mistrial off

er, he believed his familyand friends could have raised enoug h money to hire an

acc ident rec onstructionist for his retrial.

On cr oss-examination, the petitioner testified that af ter lea d counsel told him he had a “g ood shot” with an eleve n-member jury , he “c hose to let my life ride in [lead c ounsel’s] hand.” He made the dec ision to waive the twelve -member jury but trusted his lawy er a nd was c oerc ed into the waive r. He state d t hat his attorney s should have ar g ued that he w as g uiltyof re ckless homicide but acknow ledg ed that counsel arg ued neglig ence

. He acknowledg ed that the t rial court told him he had a rig ht to a mistrial and that if he had acc epted a mistrial, he would have be en re tried for first deg ree-8-

murder. H e had wa nted to testify at trial, but his attorney s told him he could not testify beca use he had two prior t h eft c onvictions. He stated that if he had testified, he would have a dmitted that he hit the vic tim s’ c ar a

fe w t im es as th ey

we re drivi ng do wn Sig na l Mo un ta in. Ho we ve r, he wo uld have te stified that he did not cause the victims to wreck the ir ca r.

Br uce Poston, a Knoxvill e criminal defense attorney , testified as an ex pert for the petitioner. He state d that he bec ame licen s ed t o p ra ct i ce law in 1999 and that since Fe bruary 2001, he had

re pr e se nte d d e fe nd a nts in e ig ht f ir st de g re e mur de r t

ri a ls a ndha d s e ttl e d e le ve n o the r mur de r c a se s. He listened to the pe titioner’s attorney s testify during the pos t-conviction hearing and read the e ntire trial rec ord for

this case. B ased on a ll of that information, he c oncluded that the pe titi o n er’s trial attorney s rende red de ficient pe rformance and that t h e p eti tioner wa s prejudice d by the def iciency be c a us e “ it’ s c le ar” the re c ou ld ha ve be e n a dif fe re nt ou tc ome

. He state d th a t A ng e la Se rn a “ c a me
a c ro ss v e ry

we ll” bu t app e are d to be “ hid ing a lot of stu ff ” du ri ng he r t e sti mon y

a ndthat th e de fe ns e could have challeng ed her cre dibilit y . He a lso noted tha t t h e d ef en s e re sted its case w ith its key witness, David B lackburn, admitting to having a prior r obbery conviction. I n light of a ll of the problems with the petitioner’s c ase, Poston stated that the de fense should have take n a mistrial and

co u ldh a v e h ir e d a n a c c id e n t r e c o n s tr u c ti o n is t f

o r a r e tria l. H e s u r mi s e d th a t an a c c id ent

re c on str uc tio nis t c ou ld ha ve c ha lle ng e d De Sha ’s te sti mon y a ndsh ow n th a t th e pe tit ion e r’ s c ar d id not hit the victims ’ ca

r with enoug h forc e to cause the wr ec k

. He stated that De Sha’s testimony about the petitioner g rinning was da mag ing and that a re constructionist also could have challeng ed the amount of time De Sha was a ble to see into the pe titioner’s ca r.

Poston t estified that an attorney has to know that a de fenda nt has a c onstitut ional rig ht to a twelve- member jury

and that ther e wa s “no excuse” f or turning down the tri al court’s of fer for a mistrial. He stated that if the trial court ha d decla red a mistrial
, t h e d ef

ense would have ha d “a perf ect opportunityto go ba ck, cor rec t the err ors that wer e made by the def ense a nd do i t better.” He state d that the def

ense ha d been c ounting on a vehicular homicide j ury instruction and that the defe nse should have a cce pted a mistrial. He sa id that, at the very leas t , t h e d ef

en s e shoul d have

arg ue d th e pe tit ion e r w a s g uil ty on ly of re c kle ss ho mic ide be c a us e the jury wa s n ot g oin g to a c qu it the petitioner “ with two dead bodies and a maimed victim.” He sa id defe ndants are scar ed and do what their la wy ers tell them. He stated that if the petitioner ha d been r etried, the State would have had a dif ficult time proving second de g ree murder.

On cr oss-examination, Poston te stified that of his eig ht rec ent jury trials, one def

endant wa s acquitted a nd three wer e convicted of first deg ree murder. H e stated tha t lead counse l in the instant

case rende red ine ffe ctive assistanc e of c ounsel bec ause he tried to convinceth e j u ry t o acquit the petitioner rather than a

rg ue the pe titioner was g uiltyof a le sser include d offe nse. Poston acknow ledg ed that he w as not prese nt at the petitioner’s tria l and did not observe the wit nesses. He said that the fac ts of this c ase showe d the petitioner a cted r eckle ssly and that it would have be en a “g ood idea” for a n acc ident rec onstructionist to have tes t i fied at the post-conviction hea ring . He conclude d that the petitioner de clined the tria l court’s off er to g rant a

mistrial beca

use t hat is what his trial attorney s told him to do.-9-

I n a wri t t en orde r, the post-c onviction court conc luded (1) that the petitioner re ceive d the ineffe ctive assistanc e of c ounsel bec ause h i s trial attorney s failed to ar g ue to the jury that the petitioner wa s g uiltyof criminallyneg lige nt homicide or re ckless homicide a nd (2) that t h e petitioner did not voluntari l y waive his rig ht to a twelve- member jury . The c ourt g rante d the petitioner’s reque st for post-convic tion relief.

II. Ana lys is

A. Failure to Arg ue L esser I ncluded Of

fense s

The State c ontends that the def ense’ s opening and closing statements re v ea l t h at it never chang ed its theory of def

ense but c onsistentlymaintained throug hout trial that the petitioner wa s not g uiltyof any

crime. The State also contends that e ven if the de fense abandone d its original theory of de fe ns e a nd re nd e re d de fi c ie nt pe rf orma nc e , the pe tit ion e r h a s f a ile d to sh ow pr e

jud ic e be c a us e if the jury

had “de sired to re turn a gu i l t y verdic t for re ckless homicide or criminally

neg lige nt homicide, it could have done so.” Finally
, the State arg ues that the de fense was unde r no oblig ation to a rg ue the pe tit ion e r wa s g uil ty of le sse r inc lud e d off e ns e s bec a us e the pe tit ion e r w ho le he art e dly believed, and maintained at the post-c onvictio n h ea ri n g, t hat he did not commit a crime. The petitioner cla ims that the post-conviction court proper ly conclude d that he rece ived the inef fec tive assistance of counse l. He maintains that lea d counsel a dmitted chang ing the petitioner’s theory of defe nse during the trial and that the defe nse’s final arg ument indicates it a bandoned the petitioner’s orig inal vehicular

homicide def

ense. We hold that the trial court erre d by concluding the petitioner

rec eived the ine ffe ctive assistanc e of c ounsel.

To be succ essful in his claim for post-c onviction relief
, the petit ioner must prove a ll factua l alleg ations contained in his post-c onviction pe tition by clea r and convincing evidenc e. See Te nn. Code Ann. § 40-30-110( f). “‘Clea r and convincing evidenc e means evidenc e in w hich ther e i s no serious or substantial doubt about the c orre ctness of the conclusi o n s d ra wn from the e vidence .’” State v. Holder, 15 S.W .3d 905, 911 (Tenn. Crim. App. 1999) (quoting H odg es v. S.C. Toof & Co., 833 S.W .2d 896, 901 n.2 (Tenn. 1992)). I ssues reg arding the credibility of witnesses, the w eig ht and value to be acc orded their testimony
, and the fac tual questions r aised by the evidenc e adduc ed at tria l

are to be re solved by

the post-conviction court as the trier of fa ct. See Henley

v. State, 960 S.W .2d 572, 579 (Tenn. 1997). There fore
, we aff ord the post-conviction court’s f indings of f

act the w eig ht of a jury verdic t, with such finding s being conclusive on a ppeal a bsent a showing that the evidenc e in the rec ord pre ponderates ag ainst those finding s. I d. at 578.

A c la im of ine ff

e c tiv e a ssi sta nc e of

c ou ns e l is a

mixe d q ue sti on of

la w a ndfa c t. S e e Sta te v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a presumption that those finding s are corr ect. See Fields v. State, 40 S.W .3d 450, 45 8 (T e nn . 200 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n c ou rt ’s c on c lus ion s o f l a w p ur e ly de novo. I d. “To e stablish ineffec t i v e as sistance of counsel, the pe titioner bear s the burden of proving both that counsel’s pe rformance was de ficient a nd that the def iciency prejudice d the defe nse.” G oad v. State, 938 S .W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466-10-

U. S. 6 68 , 6 87 , 1 04 S. Ct . 2 05 2, 20 64 (1 98 4) ). I n eval uat ing wh e the r the pe tit ion e r h a s me t th is burden, this court mu s t d etermine whether counsel’s pe rformance was within the ra ng e of competenc e re quired of attorney s in criminal case s. See B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975). “[F]ailure to pr ove either defic iency or prejudice provides a sufficie nt ba sis to deny relief on the ineff ective a ssistance c laim.” Goad, 938 S.W.2d at 370.

I n f ind ing tha

t th e pe tit ion e r r e c e ive d th e ine ff e c tiv e a ssi sta nc e of cou ns e l, the po stconviction court review ed defense counsel’s opening and closing statements from the trial transcript and conc luded that “no inconsistenc y [i n the petitioner’s the ory of def ense] was a

ppare nt to the jury .” Howeve r, the c ourt also conclude d that afte r the trial c ourt ref used to instruct the jury

on vehicular homicide, “[c]ounsel could still have a rg ued re ckless homicide a nd criminally neg lige nt homicide.” The trial c ourt ag ree d with Br uce Post on’s t estimony that the j ury probably would not have a cquitted the petitioner of all the char g es and held that “counse l should not ha ve completely abandoned t he intent theory

and should have acknow ledge d the petitioner’s a ppare nt error s in judgment a s
re c kle ssn e ss o r n e g lig e nc e .” Re g ard ing pr e jud ic e , th e po st- c on vic tio n c ou rt state d a s f

oll ow s:

As Mr. P oston observed, during the trial, the cr edibilityof the defe nse wa s dimini shed by [defense c ounsel’s] cross-examin ation reg ar d in g th e v ic ti ms ’ c o n s u mp ti o n o f a lc o h o l an d s u b s e q u e nt

unsucce ssful attempt to ex clude e vidence of the victim driver ’s neg ligible blood alc ohol levels and by the imp eachment of Mr. Bla ckburn, who was the only one of the petitioner’s thre e passe ng ers to t es t ify . Clearly , had the de fense acknow ledg ed the pe titioner’s appar ent er

rors in ju d gm en t , it would have bee n more c redible. Considering , despite the pre sence of three passenge rs in the petitioner’s ve hicle, t he lac k of direc t evidence of intent and the ambig uity of the c ircumstantial evidenc e of thes ame, the Court cannot dismiss as inconseque ntial the impa ct of de fense cre dibilit y on
ve rd ic ts[. ] I t the re fo re c on c lud e s tha t c ou ns e ls’ pe rf orma nc e in this respe ct was a lso prejudicial.

We too have re viewed the t ri al transc ript. During the def ense’ s opening statement, lea d

c ou ns e l ne ve r m e nti on e d “ ve hic ula r h omi c ide ” bu t sa id, in p e rt ine nt p art ,
Now, our c ontention is that h e wa s try ing to stop them and that th a t w a s a

re a so na ble pu rs uit , a nd he sh ou ld h a ve sto pp e d th e m. And look at what his state of mind wa s. I t w as passion, it wa s -- he

wa s a ng ry , n o q ue sti on abo ut that.

. . . .
At the conc lusion, we will -- we respe ctfully submit t o y ou that y ou wi ll fin d tha t the re is a re a so na ble do ub t with re g ard to the se2 W e no t e t hat co unsel canno t be f aul t ed fo r r eq uest i ng a vehi cul ar ho m i ci d e i nst ruct i o n when even t hi s co urt

c o n c lud e d tha t ve h ic u la r h o m ic id e , a s le sse r g ra d e o ff e n se o f first d e g re e m u rd e r, sh o u ld h a v e b e e n instr u c te d to the ju ry. Se e H es t er , N o. 03C01- 9704- CR

- 00144, 2000 T en n

. Cr i m. App. LEX I S 275, a t * 15.

-11- char g es ag ainst this man.
During the trial, def

ense c ounsel learned that the tria l court would not be g iving the r equeste d vehicular homicide instruction. I n the def ense’ s closing arg uments, counsel spec ifically addre ssed 2 the eleme nts of second de g ree murder, voluntary manslaug hter, and criminally neg lige nt homicide

a ndarg ue d to the jury

that th e pe tit ion e r w a s n ot g uil ty of tho se c ri me s. Al tho ug h le a d c ou ns e l di d not spe cifica lly addre ss r eckle ss homicide
, he re peate dly emphasized to the jury

that the petitioner was not g uiltyof any

crime. L i k e t h e p o s t -c o nviction court, we see nothing in the opening and closing statements that the jury would have perc eived as abandoning one defense theory for a nother.

Neve rtheless, the post-conviction court, rely ing heavily on Br uce Post on’s assessment of the trial, conc luded that the def ense render ed def

icient per formanc e bec ause it fa iled to arg ue the petitioner wa s g uiltyof criminallyneg lige nt or rec kless homicide. Howe ver, as stated by our
su pr e me c ou rt , “ [i]t c a nn ot b e sa id that in c omp e te nt r e pr e se ntatio n h a s o ccur re d me re ly be c a us e other law y ers, judging from hindsig ht, could have ma de a be tter choic e of ta ctics.” H ellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982). “[T] he revie wing court should a void the ‘distorting eff ects of hindsight’ a nd ‘judg e the r easona bleness of c ounsel’s ch al l en ged conduct on the fa cts of the particula r ca se, viewe d as of the time of counsel’s c onduct.’” State v. Honey cutt, 54 S.W .3d 762, 76 8 ( Te nn . 2 00 1) (q uo tin g Str ic kland , 4 66 U. S. at 68 9- 90 , 1 04 S. Ct . at 20 65 -6 6) . Si mil arl y , th is

c ou rt sh ou ld n ot s e c on d- g ue ss t a c tic a l a ndstr a te g ic de c isi on s b y de fe ns e c ou ns e l. T he fa c t th a t a strateg y or tac tic failed or

hurt the defe nse does not a lone support a claim of ineffe ctive assistanc e of counse l. Thompson v. St ate, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).

Th e de fe ns e ’s the ory

a t tr ia l w a s th a t th e ph y sic a l dama g e to the pe tit ion e r’ s a ndthe vic tim s’

car s did not support the S tate’s claim that the petit ioner rammed t he victim s’ ca r, causing it to wre ck. The de fense cross-e x amined the State’ s witnesses in an ef fort to deve lop this defense a nd arg ued at leng th during closing statements that while the pe titioner had wanted to stop the victims, he either d idn o t hit th e ir

c ar a t a ll o r d idn o t h it

it w ith e n o u g h f

o r c e to c a u s e it

to s p in o u t o f

c o n tr o l. We note that Off

icer Russell, who inspected the pe titioner’s ca r, ac knowledg ed on cr oss-ex am i n ation that there was no da mag e to the ca r’s fr ont bumper. At the pos t -c o nviction hearing, c o-counse l testified that photog raphs of both car s supported the de fense ’s theory , and the pe titioner testified that lead co u n s el believed there was a g ood chanc e the jury

would return a

not-g uiltyverdic t. I n our view, counse l presente d a re asonable defe nse in light of the State’s evidenc e an d develope d that defe nse. Cf. Hone y cutt, 54 S.W .3d at 768-69 (c oncluding that counsel re ndere d defic ient perf ormanc e by

failing to develop an a lternate theory of def ense when there was a

lack of evidenc e to support the defe nse’s theory an d ev i d ence likely could have led jurors to suspec t that the de fe nd a nt’ s g ir lf

ri e ndc omm itt e d th e c ri me ). Cou ns e l’ s dec isi on to ar g ue du ri ng c los ing state me nts that the petitioner wa s g uiltyof no crime was a strateg ic dec ision that should not be second- g uessed by a reviewi n g c o u r t. M o r e o v e r , th e tria l c o u r t i n s tr u c te d th e ju r y

o n a ll o f th e le s s e r

in c lude d-12-

offe nses of fir st deg ree murder, and the jury obviously considere d lesser inc luded offe nses, finding the petit ioner g uiltyof sec ond deg ree murder. We note that the petitioner did not have a n acc ident

rec onstructionist testifyat the hea ring . Thus, we a lso conclude tha t the petitioner has f ailed to show he was prej ud iced b y

c ou ns e l’ s n ot a

rg uin g he wa s g uil ty

of a le sse r i nc lud e d o ff

e ns e . T he po stconviction court erre d by concluding the petitioner re ceive d the ineff ective a ssistance of c ounsel.

B. Waiver

of Twe lve-Membe r Jury

Ne xt, th e Sta te c on te nd s that the po st- c on vic tio n c ou rt e rr e d by c on c lud ing the pe tit ion e r d id

no t kn ow ing ly
, int e lli g e ntl y , a nd vo lun tari ly wa ive his ri g ht t o a tw e lve -m e mbe r j ury . F ir st, the Sta te

c on te nd s th a t th e pe tit ion e r w a ive d th is i ssu e by faili ng to raise it o n d ir e c t app e a l, b y no t pr op e rl y raising it in his post-conviction petition, and by expressly

ag ree in g not to raise this issue when he waived his rig ht to a twelve- member jury . The State a lso contends that, in any event, the rec ord demonstrates the petitioner knowing ly , intelligently , and v o l u n t arily waived his rig ht to a twelvemember jury

. We conclude that the trial court e rre d by g ranting post-conviction re lief on this issue.

Under the United States and Te nnessee Constit utions, a defe ndant has a constitutional right to a jury trial. U.S. Const. amend VI ; Tenn. Const. art. 1, § 6. I n State v. Bobo, 814 S.W.2d 353, 359 (Tenn. 1991), our supreme court rec og nized that an acc used ca n waive the rig ht to have a jury composed of twe lve member s. The court stated that

it i s th e pr e ro g a tiv e of

e ve ry c ri min a l de fe nd a nt t o w a ive his ri g ht t o tr ial by ju ry . I f the de fe nd a nt s e e s f it t o w a ive thi s r ig ht, it i s permissible provided t h e waiver is made in ac corda nce w ith the safe g uards pr ovided by

the constitution and im plementing statutes or rules of c riminal proce dure. State v

. Durso, 645 S .W.2d 753, 758 (T e nn . 1 98 3)

. I f th e de fe nd a nts c ou ld w a ive the jury e nti re ly , it stands to r eason that they could have consente d to a trial by the

rema ining e leven j urors. B ut, Rule 23 of the Tenne ssee Rules of Criminal Procedure require s that waiver s of trial byjury must be made in w riting and with the approva l of the court and the consent of the dis tric t a tto rn e y

g e ne ra l. Wi tho ut f

orma l c omp lia nc e wi th Rule 23, the rec ord should c lear ly show a voluntary relinquishment of the

r i g h t s t o b e tr i e d b y a

c o m m o n l a w j u r y.
Turning to the instant case, the trial transc ript reve als that during closing arg uments, the trial court ha d to dismiss a juror who was phy sically ill. The trial court met with counse l in chamber s and

a nn ou nc e d o n th e re c ord
, wi tho ut the jury in the c ou rt

ro om, that pu rs ua nt t o d ic ta in B ob o, it believed the petitioner could proce ed with an eleve n-member jury as long as his waiver of a twe lvemember jury

was “ made in writing and w ith the approva l of the court and the consent of the District Attorney Gene ral, a nd that the re cord should cle arly show a voluntary

relinquishment of that rig ht.” Co-counsel for the defense announced that the petit ioner wanted t o proce ed with an e leven- member jury . The following exchang e then oc curr ed:-13- THE COURT: Okay

. I don’t think that he’s r eally g iving up a ri ght, waiving a rig ht. But to be on the sa fe side, I prepa red a motion to allow waiver o f -- a motion to allow trial bya jury of 11 members. I t say s, “Comes the above -name d defe ndant, Harvey Phill ip H ester, persona lly and by his attorney

. . . and moves the Court to a llo w s a id d e fe nd a nt t o w a ive a 12 -m e mbe r j ury

a ndto s ub mit

thi s
c a se to a jury of 11 me mbe rs bo th a s to guilt a ndpu nis hme nt, p u r s u a n t to th e p r o v is io n o f Ru le 2 3
, T e n n e s s e e Ru le s o f Criminal Procedur e.” I t ha s a place for the de fendant’s signature, for attorney for de fenda nt, an d

a p p roved a nd concur

red in by the Assistant District At torne y Ge ne ra l.

Mr. Heste r, is that what y ou want to do?

THE DEF ENDAN T: Yes, Sir.

TH E CO UR T: An d [ha ve y ou r atto rn e y s] satis fa c torily explained this t o y ou?

THE DEF ENDAN T: Yes, sir.

TH E CO UR T: Yo u un de rs ta nd that y ou ha ve the ri g ht at th is tim e to ha lt t

he pr oc e e din g s, the Cou rt wi ll d e c lare a

mis tr ia l, this

c a se wi ll b e re se t f

or tr ia l f or a no the r d a y ; do y ou un de rs ta nd that?

THE DEF ENDAN T: Yes, sir.
THE COURT: And do y ou also u n d erstand that by proce eding , then y o u are g iving up this rig ht to have a mistrial decla red, a nd t h at y ou are ag ree ing to c ontinue; and then if y ou are convicted of any offe nse, t hen, of course , y ou’re g iving up the rig ht to r a ise thi s a s a n a ssi gnme nt o f e rr or or a s a n e rr or

by the Cou rt

in t h i s c a s e ; d o y o u u n d e r s t a n d t h a t ?

THE DEF ENDAN T: Yes, sir.
THE COURT: And do y ou have any q u es t i o n s at all about what we ’re doing he re?

THE DEF ENDAN T: No, sir.

The recor d ref

lects t hat t he trial court handed t he written waiver form to t he petitioner a nd that the pe tit ion e r r e a d a ndsig ne d the fo rm

. Th e tr ia l cou rt inf orme d th e pe tit ion e r that a ny ve rd ic t w ou ld-14-

still have to be unanimous and aske d the petitioner if he had any questions a bout the waiver . The petitioner said no. The jury returne d to the courtroom, the trial court briefly explained why

a juror had bee n dismiss ed, and c losing a rg uments resumed.

I nitially , we note that the petitioner orig inally raised this issue in his pro se and amended petitions for post-conviction re lief as a n ineffe ctive assistanc e of counsel claim, arg uing that counsel

c oe rc e d h im i nto wa ivi ng his ri g ht t o a tw e lve -m e mbe r j ury

a nd a mis tr ia l by

te lli ng him

that hi s famil y c ou ld n ot a ff

or d to re ta in c ou ns e l f

or a re tr ia l and by faili ng to inf orm hi m th a t c ou ns e l w ou ld be app ointedfo r h im. Th e po st- c on vic tio n c ou rt de nie d r e lie f, c on c lud ing that a ny de fi c ie nc y

in counsels’ pe rformance reg arding the waive r wa s not pr ej u d i ci al . Although the petitioner did not

raise the iss ue of

his wa ivi ng the ri g ht t o a tw e lve -m e mbe r j ury

in any other con tex t, the po stc o n v i c t i o n c o u r tc o n s i d e r e d w h e t h e r t h e p e t i t i o n e r ’ s w a i v e r

o f t h e ri g h t w a s a l s o k n o w i n g , v o l u n t ar y, and intellige nt. Although the State a damantly claims that the pet i t i o n er has wa ived the issue, we choose to a ddress on the me rits the post-conviction court’s analy sis.
The post-c onviction court stated in its written orde r that “[m] ost of the circ umstances surrounding the petitioner’s waiver of the rig ht to a twelve- member jury sug g est that the waive r wa s
vo lun tary ” bu t c on c lud e d th e pe tit ion e r’ s wa ive r wa s invo lun tary be c a us e it wa s bas e d o n d e fe ns e counsel’s “unrea sonably optimis tic assessment” that the evidence would show the victims’ speed, not the petitioner’s a ctions, cause d the victi m s ’ v eh i cl e to cra sh. As we pr eviously stated, the

re vie wi ng c ou rt sh ou ld a vo id hin ds ig ht a ndse c on d- g ue ssi ng tr ia l st rate g y . In a ny

e ve nt, the de fe ns e
arg ue d d uring its c los ing state me nt a s f oll ow s:

The c ause of

the ac cident in this case w as this [ victim] fly ing dow n throug h there

. They have not established bey ond a re asonable doubt that this contact that [t he petitioner] had with [the victims’] car
c a us e d it . T he y

ha ve no t, b e c a us e a ll y ou ’v e g ot to do is lo ok a t th e se vehicles, a nd they

are not damag ed, they ar e not. I f they wer e damag ed and be nt up and beat up and had tr emendous impac t -- eve n the gi rl
, even the y oung lady , when she described it -- I forg ot what terminolog y she used, but she indicated that it wouldn’ t be m u ch da ma g e to i t, w hic h me a ns no t mu c h impa c t.

. . . .

You s e e , w h e n tw o v e h ic le s c o me v io le n tl y in c o n ta c t w ith one another , y ou g ener ally

leave debr is, y ou leave something the re, beca us e it ’ s me ta l o n me ta l.

. . . A n d w a s th e r e a n y e vidence of impact on this side of the road betwee n those two vehicle s? No, no. That is a strong circ umstance, ladies and g entlemen, a strong

c ir c ums ta nc e of i nn ocen ce o f this ma n, that th is m a n d id n ot c a us e this a ccide nt, that w hat cause d this a ccide nt w as the spee d with which they went down throug h there

.-15-

Given Of fice r Russell’s cross-e x amination testimonyand photog raphs showing that the front of the petitioner’s c ar la cked sig nificant da mag e, the de fense had a rea sonable basis for its arg ument, and we disag ree with the post-conviction court’s conclusion that t h e d efe nse’s a ssessment of the evidenc e wa s “unre asonably optimis tic.” There fore
, the pos t-conviction court err ed by concluding the petitioner’s r eliance on counsel’s unr easona bly optimis tic assessment of the evidenc e re ndere d the waive r of his rig ht to a twelve- member jury involuntary

and unintellige nt.

L ead c ounsel testified at the he aring that he discussed the option of a mi s t ri al wit h the petitioner, and c o-counse l testified th at h e b el i eved he and lea d counsel talke d with the petitioner

abo ut the wi tne sse s a ndwh a t w ou ld b e inv olv e d in a re tr ia l. T he pe tit ion e r t est if ie d th a t hi s attorney s advised him to foreg o a mistrial beca use “w e had a g ood chanc e and the y thought it was g ood.” The trial tra nscript re veals that the tria l court ver bally informed the pe titioner he could wa ive a twelve -member

jury and have an eleve n-member jury decide his guilt. The tria l court aske d the petitioner if that is what he wanted to do and if his attorney s had ex plained the waiver to him, and the petitioner a nswere d both questions in the aff irmative. The trial court also asked the pe titioner if he unde rstood he had the rig ht to a mistrial a nd if he under stood he was g iving up that right, a nd the petitioner a g ain s aid y es. We conc lude that the petitioner know ingly , intelligently , and voluntarily waived his rig ht to a twelve-member jury and that he is not entitled to post-conviction relief

.
III. Conclusi on

Ba sed upon the for eg oing and the parties’ briefs, w e re verse the judg ment of the trial c ourt and conc lude that the petitioner is not entitled to post-conviction re lief.

___________________________________ NORMA McGEEOGLE, J UDGE