### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs S eptember 13, 2000
RONNIE BRADFIELD v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County No. P-18580 James C. Beasley, Jr., Judge

No. W1999-02344-CCA-R3-PC - Filed March 9, 2001

Petitioner, Ronnie Bradfield, was convicted by a jury in the Shelby County Criminal Court of three counts of attempt to commi t second degre e murder, which t

his Court affirmed

on direct appea

l. Petitioner subsequently filed

a pro se petition together with an amended and supplemental petition for post-conviction relief alleging, primarily, ineffective a ssistance of counsel. The post-conviction judge denied relief following an evidentiary hearing which took place over nume rous days. Petitioner now appeals the judgment of the post-conviction court denying hi

s petition. We affir

m. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.

T HOMAS T. W OODALL , J., de livered the op inion of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.
Ronnie Bradfield, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney Gene ral and Re

porter; Kim R. Help

er, Assistant Attor

ney Gener

al; William L. Gibbons, District Attorney General; Paula Wulff, Assistant District Attorney General; and John W. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

In 1993, the petitioner, Ronnie Bradfield, was indicted for three counts of attempt to commit first degree murde

r. After a jury

trial, Petitioner was convicted in the Shelby County Criminal Court of three count s of a ttempt to commit second degree murder and sentenced to three terms of nine yearsto be served concurrently. Petitioner appealed his convictions, and this Court affirmed the trial
co urt’s judgment on July 19, 1995. State v. Ronnie Br adfield , No. 02C01-9306-CR-00112, 1995 WL 422787, Shelby County (Tenn. Crim. App., Jackson, July 19, 1995), perm. to appeal denied (Tenn. 1996). Pet

itioner timely

challenged his

convictions in

a pro se petition for post-conviction relief and al so through an amended and supplemental petition filed by appointed counsel. The petition, as amended, prima rily alleg ed ineffective

assis t ance of trial counsel. The evidentiary-2-

hearing was held

in April, June, and October of 1998. On March, 19, 1999, the post-conviction court entered an order denying Petitioner relief.
On appeal, Petitioner now argues that the pos t-convi ction court erred (1) by ruling that Petitioner received effective assistance of counsel; (2) by failing to rule on each and every issue as required by Tenn. Code A

nn. § 40 -30-211; (3) by

ruling that Shelby

County Crimina

l Court Rule 6.03 barred the filing

of pre-trial motio

ns by Petitione

r's counsel; (4)

by refusin

g t o bifurcate the proceedings or grant a continu ance so that a witness who was not present at the post-conviction hearing could testify at a later time; (5) by r

efusing to recuse because of prejudice against Petitioner; and (6) by convicting Petitioner without having jurisdiction because one of the indictments failed to include the mens rea of “intentionally” in its allegations of the offense. Petitioner has also alleged
on appeal errors i

n the jury’s

conduct during d

eliberations and

in the trial court’ s instructions to the jur y.
After

a review of the record and applicable law, we hold that the only issues properly before
us are the first six issues listed above. Regar ding the first, ineffective assistance of counsel, we conclude that Petitioner has not established counsel’s performance was be low the level of competencedemanded under Baxter v. Rose , 523 S.W.2d 930 (Tenn.1975). He has also faile d to establish prejudice as required under Strickland v. Washington , 466 U.S. 668 (1984). A s to the next five errors allegedly committed by the post-conviction court, we hold that Petitioner

has not met the burden of proving his allegations by clear and convincing evidence. The remaining two issues are waived. See Tenn. Code Ann. § 40- 30-206 (f)-(g) (199 7). According

ly, we aff

irm the postconviction court’s denial of relief.
I. Background

The facts le ading to t he underlying convictions are taken from a review of this Court’s opinion in the direct appeal. On February 21, 1992, the Memphis Police Department rec

eived a call that Petitioner was making threatening phon e calls to the director of the police and the mayor. Petitioner was standing outs

ide his home when the police arrived. The police told Petitioner they needed to speak with him, bu

t he walked into his h

ouse as they

approached. Th

e poli ce fol lowed Petitioner and entered his h

ouse, their

weapons still in their holsters. They noticed the muzzle of a gunin Petitioner’s poss ession. A brief sh

ootout between Pet

itio ner and the police ensued. Afterward, Petitioner was arrested.
Petitioner initially retained Walter Evans as counsel for trial. Shortly after the preliminary hearing, Petitioner di schar ged Evans and r etained attorne

ys Handel D

urham and Alan Cha

mbers. Durham and Chambers represented Petitioner until two weeks prior to the trial date. At that time, Petitioner f ired Durham and Chambers and rehired Evans. Evans defended Petitioner throughout the trial proceedings. At the conclusion of proof, Petitioner was convicted and sentenced. Petitioner appe aled. His sole issue on ap peal was whethe

r the evidence w

as sufficient to c

onvict him. This Court affirmed th

e trial court’s ju

dgment.-3-

Petitioner timely filed a pro se petition for post-conviction relief on June 3, 1997. He raised the following grounds for relief, all centered on a claim of ineffective assistance of trial counsel: (1) counsel failed to file the necessary pre-trial motions, even though a portion of the evidence admitted at trial was illegally obtained and a motion to suppress was warranted; (2) counse l failed to object when one of

the three indictments against Petitioner was fatally flawed and, therefore, the trial court lacked jurisdiction; (3) counsel failed to u tiliz e documents which were available to impeach prosecution witnesses and prove Petitioner's innocence; (4) coun sel failed to inv estigate properly and callwitnesses for Peti

tioner; (5) couns

el failed to deve

lop all defenses a

vaila ble to Petitioner; (6) counsel failedto object to improper and prejudicial comments by the State during closing argum

ent; (7) counsel fail

ed to object to improper jury instructions; (8) counsel failed to properly prepare Petitioner for his sentencing hearing and to present mitigating factors during same; and (9) counsel failedto object when the prosecutor selectively excluded African-Americ an jurors during jury selection. On June 17, 1997, Viola Johnson was appointe

d as Petitioner’s c

ounsel to assist with

his post-conviction petition. Johnson prepared and filed an amended and supplemental petition which containedallegations of ineffective assistance of counsel similar to the Petitioner’s original petition, i.e., trial counsel failed to (1) file necessary pre-trial motions, (2) present all available defenses, (3) procure witnesses, and (4 ) impeach State wi

tnesses when it wa

s possible to do so . The amende d petition further alleged that, but for counsel's lack of preparation andprofessional er

rors, the results of the proceeding would have been different.

In De c ember 1997, Petitioner was dissatisfied with Johnson’s legal assistance and filed a motion for appointment of new counsel. Petitioner claimed, inter a lia , that he and Johnson had serious conflicts of interest, i.e., counselhampered the pro gress of his def

ense and failed to represent him in a “zealous” manner. Johnson was allowed to w ithdraw from th e case and on January 20, 1998, Petitioner

was appointed new counsel, Garland Erguden. Petitioner thereafter filed a pro se motion request

i ng recusal of the presiding judge and a change of venue for his post-conviction proceeding. The motion was denied. Petitioner later filed another motion for new counsel as he was also disappointed by Egruden’s lack of zeal. On March, 10, 1998, the court appointed a third attorney to assist Petitioner, Benjamin Head, whose representation continued throughout the remainder

of the post-conviction proceedings in the trial court. At the conclusion of the evidentiary hearing, the post-conviction court denied Petitioner relief in a written order on March 19, 1999.

II. Post-Convic

tion Hearing

The post-conviction hearing began on A pril 24, 19 98 and was he ld sporadi cally through October 26, 1998. Petitioner’s proof consisted of his own testimony plus the testimony of his trial counsel, two witnesses present during the shooting, one of three attor ne ys involved in

his postconviction petition, and a neighbor. The State’s only proof was the testimony of t he t wo a tto rneys who handled Petitioner’s case after the preliminary hearing until two weeks pr ior to trial when Petitioner rehired Evans.

Petitioner testified that his trial counsel, Walter Evans, was ineffective for numer ous re asons. Petitioner ar gued that E

vans failed to handle pre-trial procedures appropriately . Specifically, he-4-

alleged that Evans did not file the proper pre -trial mot ions, including mot ions for impeachm

ent, estoppel, change of venue and to suppress evidence illegally seized by the police in violation of the Fourth Amendment. Petitioner testified that Evans neglected to object to the fact that one of the indictments

against Petitioner was fatally flawe d in that it

omitted the word “intentionally” in the description for first-degree murder. In addition , Petit ioner argued t hat Evans failed t

o investigate Pet i tioner’s case properly. Petitioner claimed that he gave Evans a list of fourteen witnesses who hadinformation relevant t o Petitioner’s def ense but that Evan

s did not talk to any

of them or call them to testify during trial.
Rega rding Evans’ performance during trial, Petitioner alleged that Evans should have obje cted t o the racially-biased selection of jurors. Petitioner complained that the prosecutor systematica

lly excluded all African-American candidates for jury duty during voir dire and,
con seq uen tly, his trial was cons titu tionally infi rm. Petitioner fur

ther testified tha

t Evans failed to impeachState witnesses an d to object to any one o f the many erroneous statements made by the prosecutor

during the trial. For example, Petitioner claime d that Evans should h

ave pointed out to the jury the fact

that the testimony of the police officers given at trial conflicted with the information containedin t heir official reports. Petitioner said that Evans also should have objected when the prosecutor

told the jury that Petitioner used a .44 magnum when he actually used a different type of weaponand tha t Evans should have protested when the prosecutor claimed that the hole in the neighbor’s house was made by a bullet when no proof was

offered to suppo

rt this statement. Petitioner argued that an

effective attor

ney would

have called

exp ert s to att est to w hic h ho les , if any, were truly bullet holes. Petitioner testified that Evans was also ineffective at trial when he neglected to develop additional defenses for Petitioner, su ch as duress and n

ecessity, w

hich were appro

priate giventhe facts of the case. Petitioner claimed that Evans failed to ob

ject to improper st

atements made by the prose

cutor in its closing argument to the jury and, also, that Evans failed to object when the judge gave

the jury unconstitutional instructions. For instance, Petitioner maintained that he was unfairly prejudiced by a statement the prosecutor made to the jury that referred to Petitioner as “mentally disturbed.” Petitioner further contended that the trial judge a

lso erred when he used the terms “moral certainty” and “let the mind rest easy with the decision that you make” d uring jury instructions. Petitioner

claimed that the w

ay the judg

e placed these p

hrases within

the framework of the jury instr

uction lessened th

e Sta te’ s burden of proof and, therefore, Evans should have objected to it.
Concerning Evans’ post-tri al p erformance, Petitioner testified that Evans was ineffective during the sentencing

process becaus

e he did not fully

explain to Petitione r how the process operated. Moreover, Petitioner claimed that Evans failed to present mitigating factors to the court in Petit ioner’s behalf. For instance, Petitioner believed that the sentencing hearing was a prop e r forum for Evans to bring forth character witnesses to testify to Petitione r ’s good standing in the community. However, no witnesses were called.
During cross-examination, Petitioner was asked to give the court the names of the fourteen witnesses that Petitioner claimed he revealed to Evans prior to trial, but Petitioner cou ld only remember

t wo . Petitioner did not explain to the court how the testimony of any of the witnesses-5-

would be relevant

or helpful and he

did not present any

of them in

court to testify. In effect, all of the missing witnesses remained missing. Then Petition er w as asked to read to the court a section of the trial record which showed that Evans did, in fact, object when the State presented evidence concerning a bullet

hole in the neighbor’s house–an objection which Petitioner claimed his counsel failedto make. Petitioner was also asked whether he was prepared to produce an expert to explain to the court how such testimony would have been helpful to Petitioner’s defense. Petitioner failed to answer. Finally

, the State requested that Pe

titioner produce

the character

witnesses who woul

d have testified for him at the sentencinghearing and also give the court a list of the African-American jurors who were sy

stematically

excluded by th

e prosecutor at h

is trial. Petitioner declined to produce this information an

d acknowledge

d that his jury

did include two Afr

ican-American

jurors.

Petitioner’s trial counsel, Wal ter Evans, testified that he represented Petitioner at trial and to that end, he had discussed the case with Petitioner in detail and obtained the information necessary to defend him. Evans testified that Petitioner never expressed a desire th at Evans canvass the neighborhood

for evidence, nor did Petitioner provide him with a list of witnesses at any time during their relationship. To Evans’ knowledge, Petitioner’s mother and a man named Thomas Hill were the only adults present

at the shooting incident, outside of the police officers involved, and they both testified at trial. No other persons had personal knowledge of facts relevant to the shooting. Evans testified that, in his opinion , Petitioner had a strong case on the theories of illegal entryand selfde fense, a nd self-defense did not require testimony from any one other than Petitioner. Evans testified that a defense of “duress” simply did not apply , given the facts of the case.

Evans further testified that when Petitioner requested that Evans represent him the second time, the trial date wa

s only two wee

ks away. Mo

reover, the trial court made it clear to Petitioner at the time of

his request to change attorneys that the trial would not be delayed to allow new counsel to prepare. Evans

testified that he w

as familiar with Pe

ti tion er’s case, however, because he represented

Petitioner at the preliminary hearing and had conducted a thorough examination of the police officers at that

t ime. In response to questions concerning Evans’ failure to file pre-trial motions, particularly a motion to suppr ess, Ev ans testified that by the time he was reinstated as Petitioner’s counsel t

he deadline for filing pre-trial motions had passed. Thus, Evans argued the illegal entry issue

“extensively

,” albeit unsuccessfully, later in a post-trial motion for judgment of acquittal. RegardingEvans’ failure to impeach the police officers’ testimony, Evans testified that he cross-examined the officers a t trial with a view to

explore any a

nd all inconsistenc

ies in their statements. Moreover, befo re each cross-

examination was c

onclud ed, Evans asked Petitioner whether there were any que stion s that Petitioner wanted Evans to ask the witness. Lastly, Evans testified that he filed no mitigating factors at the sentencing hearing beca use none applied.

Thomas Hill testified that he was present during the shooting incident. He testified that he remembered

talking with

Evans but did not re

call the actual c

onversation. Hill

also claimed that he didnot testify at Petitioner’s trial, even though the record shows he did. He further claimed that he didnot remember any of the witnesses who testified, although he reca lled being present in the courtroom.-6-

Odester Hudson, Petitioner’s mother, testified that she and a man named

Thomas Hill were pr esent edto Evans as the only witnesses inside the house during the shooting. She remembered Evans stating that he intended for only those witnesses who were inside the house to testify at trial.
Carey Mayfield, a

neighbor of the

Petitioner’s,

testified that she was at home on the day of the shooting. Mayfield said that she observed the police “every where” that day

and went outside to investigate. When a police officer asked to use her telephone, she granted him permission and overheard the officer suggest that they “keep Mayor Her

enton in surveilla

nce [sic] because

they did not have the guy . . . .”

Viola Johnson, one of Petitioner’s attorneys, testified that she re presented Petitioner for a short while during his p

ost -co nviction proceeding and that she filed an amended post-conviction petition for Petitioner. Johnson testified that she spoke with Evans regarding his use of witnesses during Petitioner’s trial and that Evans wa s forthcoming wit

h access to the inf

ormation in his file

s. Johnson did not reca ll discove ring a ny relevan t or necessary

witnesses that Eva

ns did not call to testify but, if some had existed, Evans gave her a good reason for not calling them.

The State’s sole evidenc e was the testimony of the attorneys, Handel Dur ham and Alan Chambers, who handledPetitioner’s case after the prelim

inary hear ing until two week

s prior to trial when Evans reassumed the role of counsel. D urham t estified that the representation of Petitioner by himself and his partner, Alan Chambers, went smoothly until Pe

titioner wanted to

proceed with
a novel defense

theory: Petitioner

believed that whenever any person entered onto another person’s pro pert y, the property

owner had a rig

ht to shoot them. D urham explained to Pe titioner that his reasoning was erroneous and without basis in the law. As Petitioner’s co unsel, he and his

partner felt that a mental evaluationmight be advanta geous in resolvin

g some of Petitioner’s le

gal matters, but Petitioner adamantly refused to cooperate to this end.

Durham further testified

that he requeste

d a witness list

from Petitioner but never received
one. After Durham and his partner were fired by Petitioner, they gave Eva ns all of the materials they hadgathered in pr

eparation of Peti

tioner’s defens

e. Durham te s tified that he and his partner each drafted a letter to Petitioner in an attempt to clearly apprize Petitioner of important matters that were pending when they withdrew from the case. Specifically , Durham’s letter

reiterated the State’s offer of a fifteen-y

ear sentence and al so Durham’s concern that Petitioner should have a mental evaluation. In addition, Durham im

plored Petitioner

to give up the leg

al theory th

at a person was e

ntitled to shootwhomever might

wander onto his property and reiterated the fact that Petitioner refused to give thema witness list or let

him and his partner

continue to represent him. Durham testified that he had only two contacts with Petitioner after they ceased re presentat ion. On both occasions, Petitioner threatened to “blow the brains out” of Durham and his staff.

Alan Chambers, co-counsel with Durham, testifi ed tha t he also wrote a letter to Petitioner after being fired. In his letter, Chambers informed Petitioner that the trial judge wanted Petitioner to undergo a mental evaluation to determine whether Petitioner was comp etent to stand tria l. Chambers also voiced his concerns regarding Petitioner’s “hostile, fearful, and suspicious” behavior-7-

toward them and Pe

titioner’s inabilit

y to logica

lly assess his legal situation. Chambers confirmed that both he and Durham

had requested

a witness l ist from P etitioner but that no ne was forth coming.

At the conclusio

n of the evidentiary hearin

g, the post-conviction court denied Petitioner relief in a written order. The order containedthe following findings and conclusions: (1) Evans was not ineffectivewhen he did

not file pre-trial motions in contradiction to the deadline for filing as set out in the Shelby

County Criminal Court Rules; (2) Petitioner failed to present proof to support his claim that any evidence was obtained illegally , therefore Petitioner had no legal ground to sustain a motion to suppress; (3) the

indictment in iss

ue was suffic

ient to place Petitioner on notice of the charges agains t him; (4) Petitioner failed to show that because Evans did not file motions and perform investigations,

he was therefore ineffective or pr ove that, but for these alleged errors, the verdict would have been diffe

rent; (5) Petitione

r failed to prese

nt proof as t

o which j ury instruction he considered

erroneous and, after a review of the record, the jury instructions given by the trial court
were proper; (6) Petitioner failed to present any proof a

s to what facts

the “myster

y witnesses”

would have testified to and, therefore, Evans’ failure to locate and cal

l them does not const

ituteineffective assistance of counsel; and (7 ) Petitioner faile

d to prese nt proof re garding what African-American jurors were syste

matically excluded by the prosecution. After a review of the trial record, the records of pre-trial and post-trial appearances before the court, the history of Petitioner’s post-conviction filings and pleadi ngs and the post-trial record, the post-conviction court concluded that Petitioner received a fair trial by

a jury of his

peers in front of

a respected jur

ist and, further,

that his rights to a fair trial were not violated by ineffective repre sentation of counsel.
III. Analysis

Petition er's request for post-conviction relief is governed by the Post-Conviction Procedure Act of 1995. See

Tenn. Code A nn. § 4 0-30- 201 to -310 ( 1997) . In order to obtain post-conviction relief, a petitioner must a llege that his co

nvicti on or sentence is void or voidable because of an abridgement

of a constitution al right. Id. § 40-30-203 (1997). Petitioner must also include allegations of fact supporting each claim for relief set forth in the petition. Id. § 40-3 0-204 (e). If granted an evidentiary hearing, petitioner has the burden of proving his allegations by clear and convincing evidence. Id. § 40- 30-210(f). A post-conviction court shall dismiss any petition for post-conviction relief that claims relief for issues that have been waived or previo

usly determined. Id. § 40-30-206(f) (1997). Section 40-30-206 de fines " waived" and "previously determined" as follows:
(g) A ground for relief is waived if the pet itio ner personally or through an attorney failed to pr ese nt it for determination in any proceeding before a court of competent jurisdiction in wh ich the ground could ha

ve been present

ed unless:
(1) The claim for relief is based upon a constitutional right not recognized a

s existing at the time

of trial if-8- either the federal or s

tate constituti

o n requires retroactive application of that right; or
(2) The failure to present the ground was the result of state action in viol atio n of the federal or state constitution.
(h) A ground for relief is previously determined if a cour t of competent

jurisdiction has ruled on the merits aft er a ful l and fair hearing. A full and fair hearing h as occurred whe

re the petitioner

is afforded the opportunity to call witnesses and otherwise present evidence, regardless of whether the petitioner actually introduce d any evidence.

Id. § 40-30-206(g)-(h). There is a rebuttable pr

esumption of waive

r when a petitione

r fails to raise
a ground for relief before a court of competent jurisdict ion i n which the ground should have been presented, which may

be overcome by allegations of fact explaining why each ground for re lief was not previously presented. Id. §§ 40-30-210(f), -204(e).
Findings of fact and conc lusions of law made

by the post

-c onviction court are given the
w eight of a jury verdict. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Con seq uen tly, this Court is bound by those findings un

less the evid

e nce contained in the record preponderates otherwise. Davis v. State , 912 S.W.2d 689, 697 (T enn. 1995). Since

the postconviction court judge found the petitioner failed to establish that he was entitled to post-conviction relief, we revi

ew the record f

or the purpose of

determining whe

ther the facts pr

eponderate ag

ainst the judgment e

nte red b y t he post-convictio n court. In doi

ng so, we are bo

und by cert

ain wellestablishedrules of appellate review. First, this Court may not reweigh or reevaluate the evidence
or substitute its inferences for those drawn by the post-conviction court. Black , 794 S.W.2d at 755. In addition, any

questions rega

rding the cred

ibility of the witnesses, the weight and value to be given to their testimony, and the factual issues raised by the evi den ce are for res

olution by the

postconviction court. Id. Lastly, a petitioner bears the burden of proof, and must show why the evidence in the record preponderates against the judgment entered by the post-conviction court. Id.

The above standards are slightly modified when the claim for relief is ineffective assistance of counsel. In State v. Burns our Supreme Court held that a claim of ineffective as sistance of counsel raised on direct

appeal raises mixe

d questions of law a

nd fact, and th

us is subject to a de
novo review. State v. Burns , 6 S.W.3d 453, 461 (Te nn. 1999); see Fields v. State , ___S.W.3d ___ (Tenn. 2001). The de novo review of a trial court’s factual findings by an appellate court are entitled to a presumption of c

orrectness, whi

ch is overcome only when the preponderance of the evidence is contrary to the trial

court’s fin dings of fact. Fields , ___ S.W.3d at ___; see also Henley v. Sta te , 960 S.W.2d 572, 578 (Tenn. 1997). Furthermore, in reviewing the trial court’s application of law to its factual findings “to determine whether counsel’s performance was deficient or w hether the defendant was prejudi ced b y tha t de fic ien cy, ap pel lat e cou rts sho uld con duc t a p urel y de novo-9-

review, according to the trial court’s conclusions of law no deference or pr esumption of correctness.” Id. at ___. Lastly, a

defendant alleging ineffective assistance of counsel must prove the allegations of fact underlying his claim by clear and convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997); Fields , ___ S.W.3d at ___. This standard of proof is re quired regardless of whether a petitioner is bringing the claim in a direct appeal or a post-conviction petition. See Burns , 6 S.W.3d at 461 n.5.

We note at the outset of our review that many of Petitioner’s claims were unsupported by allegations of fact or clear and convincing evidence as required by T.C.A. §§ 40-30-204(e) and 210(f). Subsection 40-30- 204(e) require

s that the petit

ioner inclu de allegations of fact to support eachclaim for relief and also explain why each ground was not previously

presented in

any earlier proceeding. Tenn. Code Ann. § 40-30-204(e) (1997). And, subsection 40-30-210(f) assign s the petitioner the burden of proving the allegations of fact by clear and convincing evidence

. Id. § 40- 30-210(f). We note that a pro se petition under the Post-Conviction Proc

edure Act i s held to less stringent standards than formal pleadings drafted by lawyers. Swanson v. State , 749 S.W.2d 731, 735 (Tenn. 1988).

Still, proof by clear and convincing evidence r emains necessary. The f indings andconclusions of the post-conviction court reveal that the proof presented b y Petitione r at the evidentiary hearings was, for many issues, insufficient to allow the court to grant Petitioner relief. Petitioner ’s brief for this app eal similarly

consists of my

riad bare alleg

ations and conclu

so r y statements.

A. Ineffective Assistance of Counsel
RegardingPetitioner’s alle gations about his

trial counsel, Pet

itioner contends i

n this appeal that he was denied effective assistance due to counsel’s (1) failur e to investigate thoroughly; (2) fa ilure to ca ll the witnesses na med by Petitio

ner; (3) failure

to file a pre-tri

al motion to suppres s illegally obtained evidence; (4) failure to raise the defenses of duress and n ecessity; (

5) failure to object to various prejudic

ial and improper s

tatements made by

the State in its closing argument; (6) failure to impeach State witnesses when possible to do so; (7) fai lur e to pro perl y con duc t di sco very; (8) failure to

object when the State selectively excluded African-American jurors; (9) failure to call
an expert witness to ch

allenge the pro

secution’s evide

nce when proper

; (10) failu

re to move for a mistrial after jury misconduct; (11) failure to have a proper sentenc

ing report for t

he court to

review during the sentencing hearing; (12) failure to file a motion for probation where Petitioner was a first time offender; (13)

failure to file a motion to dismiss c harges becaus e the indic tments di d not charge Petitioner with any crime relat ing to the reason the police were summoned to his house; and (14) failure to poll the jury

to discover

whether the verdict was unanimous. After a review of the record, we find no merit in Pe

titioner’s alleg

ations.

When a petitioner see

ks post-conviction

relief on the bas

i s of ineffective assistance of counsel, he must fir st establi sh that the services ren dered or the advice given were below “t he range of competence demanded of attorney s i n criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adver se e f fect on the defense.” Strickla

nd v . Washington , 466 U.S. 668, 693 (1 984). Should the pet itioner fail to-10-

establi sh either fac tor, he is not entitled to relief. Our supreme court described the standard of review as follow

s: Because a petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudice provides a sufficient bas is to deny relief on the ineffective assistance claim. I ndeed, a court need notaddress the compo

nents i n an y p articular orde r or even addre

ss bothif the defen dant makes a n insuffic ient showi ng o f one component.

Goadv. State , 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective assistance of co

unsel, the petitioner is not entitled to the benefit of hinds ight. Th is Court may no t second-guess

a reasonably

based trial strategy and we cannot grant relief based on 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, however, applies only if the choices are made after a

dequat e preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). As discussed above, our review of the post-conviction court’s determination on th

ese issues is de novo

. See Burns , 6 S.W.3d at 461.
First, Petitioner claims that Evans, his trial counsel, failed to sufficiently investigate his case. Evans testified at the post-conviction hearing that at the time of his reinstatement as Petitioner’s counsel, he was familiar with the case be cause he was the attorney who originally handled Petitioner’s case until after the preliminary hearing. After Evans was rehired , however, investigation of the case was somewhat limited by a lack of cooperation from Petitione r and t he short space of time left until the trial

. We reiterate that Evans was rehired only two weeks before trial began and furthermore, that Petitioner was warned by the court that if he fired his then counsel, the tria l date would nevertheless remain firm.

As a corollary to his claim regarding improper investig ation, Petitioner also alleges that Evans failedto talk to or call the witnesses on a list that Petitioner gave to him. The evidence presented regarding th

ese fourteen “m

ystery witnesses” who co

uld have testified

consists solely of Petitioner’s own statement to that effect. According to the record, the great weight of evidence leans towarda contrary notion

that no such list existed. If, indeed, there was such a list, Petitioner kept it well-hidden from

all three of his trial attorneys. Evans, Handel, and Durham all testified that they
never received any witness names save those of Petitioner’s mother and Hill, the two persons present in the house when the shooting occurred. Both testi fied at the t rial and th e post-conv iction hea ring. Petitioner’s reluctance to provide his counsel with names of witnesses who may have information persistedin the fa ce of repeated requests by all three attor neys. At the po st-convic tion heari ng, Petitioner was asked

again to provide the names of the fourteen persons that he claimed should have been int ervi ewed and /or cal led to t est ify. In response, he gave two names but offered no proof what the testimony of

the two persons would have been or how it would have helped his case. Moreover, the wit nes ses were not pres ent in c our t to tes tif y.-11-

In its order denying relief, the post-conviction court noted the following: the only witnesses to the incid

ent whic h gave rise to Petition er’s convic tion test ified for th e defense at t he hearing; Petitioner claimed that other witnesses existed, but did not present proof to the court as to who the witnesses were or what they would have said; and, Petitione

r made no offer o

f proof as to

witnesses, expectations,

the effect of unfiled motions, or

any of the other unsubstantiated allegations he made. The post-conviction court concluded that Petitioner failed to show that Evans was ineffective and failedto present any proof that, but for counsel’s ineffective representation, the outcome would have been any different.

When a petiti oner contends that trial counsel failed to discover, interview, or present witnesses in support of his defense, these witnes ses should be presented by the petitioner at the evidentiary hearing. Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). As a general rule, this is the only way the petitioner can establish that (a) material witnesses existed and but for counsel’s negligence, could have been discovered, (b) a known witness was not interview ed, (c) the failure to discover or inte

rview said witnes s(es) inured to petitioner’s prejudice, or (d) the failur e to have a k nown witness present or called to testify resulted in the denial of critical evidence whic h prejudiced

the petitioner’s case. Id. It is element ary that neithe r a trial ju dge nor an appellate court
can or should be called upon to speculate regarding whether further investigation would have been fruitful or what a

witness might have said if called to testify

. Courts cannot ope

rate in a vacuum. Even if Petitioner was able to estab lish tha t his counsel was deficient in investigation of facts or known witnesses under Baxter v. Rose (which he did

not), he is not entitled to relief on this ground unless he ca n pr odu ce a m ate ria l wi tne ss w ho ( a) co uld hav e bee n fo und by a reasonabl e investigation and (b) would hav e testified favor

ably in support of the defense if called. Id. Petitioner didnot present the post-conviction court with any of the above and, therefore, failed to establish the prej udi ce re qui rem ent man dat ed b y Strickland v. Washington

. Petitioner also asserts that Evans was ineffective when he failed to file a

pre-trial motion to suppress evidenc

e illegally obtained as a res

ult of unlawful ent

ry into his house. However, Evans testified that he was precluded from filing pre-trial motions

by Shelby

County Crimina

l Court Rule 6.03. This rule requires that “[a]ll prelimina ry motions, in

cluding motions to d

ismiss, and motions to suppress evidenc

e . . . must be filed i

n writing not more

than twenty

(20) days a

fter forma

l arrai gnmen t. . . ” Although the rule provides that an extension may be granted upon reque st for “good cause,” Petitioner

offered no proo

f of circumstanc

es that would have

justified such a re

quest or any evidence to support his contention that a motion to suppress would have been successful.
Moreover, Evans testified that he “extensively” argu ed that the entry of police into Petitioner’s home was warrantless and illegal during the post-trial motion for judgment of acquittal and the motion for new trial. The trialrecord also rev eals that, in ruling on post-trial motions, the trial court observed that Evans “forcibly argued to the ju

ry that the o

fficers had no r

ight to go into [Petitioner’s] house.” Reviewing the trial record, we agree that Evans adeq uat ely develop

ed this theory during his cross-examinations and closing argument.-12-

In its order denying relief, the post-conviction court found that Evans was not ineffective for complying

with the local rules and orders of the trial court which f orbade fil

ing of a motion to suppress. Further, the court stated that it was presented with no proof that any evidence which wa s admitted was obtained illeg ally, nor wa

s there any

proof presented

that a factual ba

sis existed which would support a motion to suppress. As a result, the court found Petitioner failed to carry the burden of proof as to these issues. We agree with the conclusions of

the post-conviction court. The record shows that the evidence

presented by

Petition er at the post-co

nviction hearing

was insufficient

to provide a basis for success on a motion to suppress. Even if Petitioner had presented proof that the police committed an illegal entry into Petitioner’s home, an illegal stop or arrest does not warr ant the total exclusion of whattakes place afterward. State v. George Wesley Harville, Jr. , No. 01C01- 9607-CC-00300, 1997 WL 661726 at *3, Sequatchie Cou

nty (Tenn. Cr

im. App., Nashville

, Oct. 24, 1997). This is particularly true of crimes committed subsequent

to the alleged Fourth Amendment violation. Id. ; see United States v. Spr inkle , 106 F.3d 613, 619 (4 th Cir. 1997) (where the suspect’s response to an illegal stop

was “itself a new, distinct crime , then the police ma y constitution

ally arrest [him] for that crime.”). We conclude that th e record conta

ins neither a fac

tual nor legal ba

sis for finding incompetence on the part of Evans or prejudice to Petitioner.
Next, we turn to the defendant's claim that Evans was ineffective when he failed to raise the defenses of dur

ess and necessity

. The defense of

duress is defined

as follows:
(a) Duress is a defense to pro secution wh ere the person or a third person is threatened wit h harm which is pre

sent, imminent, impending and of such a nature to induce a well-grounded apprehensionof

death or serious bodily injury if the act is not done. The threatened harm must be continuous throughout the time the act is being committed, and must be one from whi ch t he person cannot withdraw in s afet y. Further, the desirability and urgency of avoiding the h arm must clearly

outweigh, acc

ording to ordina

ry standar ds o f reasonablenes s, the harm sought to b e preve nted by the law proscribing the

conduct.

Tenn.Code Ann. § 39-11-504 (1997). The Sentencing Commission Comments to this section advise that, in o rde r to excuse criminal conduct, the compulsion to commit the unlawful act must be immediate

and imminently present and of such nature to produce a well-grounded fear of death or serious bodily harm. Id. In addition, there must be no reasonable means to escape the compulsion to commit the offense. See State v. Robinson , 622 S.W.2d 62, 73 (Tenn. Crim. App.198 0). By contrast, this defense is “u navail able to a person who inten tionally, knowingly, or recklessly becomes involved in a situation in

which it was proba

ble that the perso

n would be subjected to compulsion.” Tenn. Code Ann. § 39-11-504(b).

The record of the trialproceedings , the eviden tiary hearings and the testimony of Petitioner’s lawyer during the post-conviction hearing indicate that Petitioner did not have a legitimate defe

nse of duress. This defense requires that a defendant experience a well-grounded apprehension of death-13-

or serious bodily injury but be unable to withdraw in safet y befor e he commits the illeg al act. Granted, the police enter ed Petitioner’s ho

use. But t

he e vidence adduced at trial shows that the officers informed Petitioner when they arrived that they merely wa nted to talk with him. Petitioner refused to speak with the police and, instead, went into his house and armed himself. Petitioner fired first, and the record r

eveals no agg

ressive behavior

on the part o

f t he police which c

ould instill a well-grounded

fear of death

or serious bodily

harm sufficient t

o warrant this action. Petitioner had ample opportunity t

o safely withdraw, e.g., he had the option to put down his weapon. Further more, even if a dur ess defe nse was pos sib le, Pet iti one r neg ate d th e def ens e by “i nte nti ona lly, kno win gly,
or recklessly [becoming] involved in a situation in which it was prob

able that he would

be subjected to compulsion” when he started shooting at the police. See Tenn. Code Ann. § 39-11-504(b).

The defense of

necessity p

rovides that a

“defendant’s conduct is justified if: (1) [t]he person reasonably

believes the conduct is immediately necessary to avoid imminent har m ; and (2) [t]he desirability

and urgency

of avoiding the h

arm clearly

outweigh, according to ordinary standards of reasonablenes s, the harm sought to be prevented by the law proscribing the conduct.” Tenn. Code Ann. § 39-11-609 (1997). The statutory provision “codifies the common law defense

of n eces sit y” and“excuses c

riminal c onduct in those exceedingly rare situations where criminal activity is an objectively reasonable

response to an extreme situation.” Id. Sentencing Commis sion Comments (emphasis added).

The defenses of duress and necessity are similar both in form and in the policy supporting their avai lab ili ty. This Court has prev iously recognized a common law distinction between the two defenses:

Common law historically disti n guished between the defenses of duress and necessity. Duress was s aid to excuse criminal conduct where the actor was un der an unlawful threat of imminent death or serious bo dily

injury, whic

h threat caused t

he actor to eng

age in conduct violating the literal terms of the criminal law. While the defense of duress covered the situat ion where the coercion ha d its
source in the actions of other hum an b ein gs, t he d efen se o f nec ess ity,
or choice of evils, traditionally covered the situation where physical forces beyon d the actor's control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike beca use B threatened to kill him if he did not, A would argue that he acted und e r duress, whereas if A destroyed the dike in order to pr otect more valua ble pro pert y fro m fl ood ing, A co uld cla im a defe nse of n eces sit y.
Statev. Green , 995 S.W.2d 591, 606 (Tenn. C rim. App. 1 998) (quot ing United States v. Bailey , 444 U.S. 394, 409-10, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980)) (emphasis added). The general policy behind bothdefenses reflects a judgment that the individual was justified in the commission of the unlawful act because (1) he was acting under threats or conditions which a person of or d inary firmnessw ould have bee n unable to resist or (2) he reasonably believed that criminal action was-14-

necessary to avoid a harm more serious than that sought to be prevented by the statute defining the defense. Id.

Since Petitioner has re

peatedly a

nd adamantly

argued that he

is not mentally

incompetent,
we adju dge his actions under normal standards regarding human behavior. A person of ordinary firmnessshould have been a ble to resist shooting at the police unde r Petitioner’s cir

cumstances. Further, criminal action was not necessary to avoid harm to Petitioner or the other inhabitants of the house. In sum, we find

no incompetence

on the part of Eva ns where he did not present defenses which have no merit. Even if, arguendo , Evans was ineffective by failing to present these defenses, Petitioner has failed to prove that the alleged ineffectiveness was prejudicial under Strickland

. Petitioner also contends that Evans was ineffective by failing to object to various prejudicial andimproper statements made by the prosecutor in his or her closing argum

ent, i.e., the prosecutor suggested that Petitioner wa

s “mentally

disturbed,” the prosecutor misidentified the type of firearm used by Petitioner

, and the prosecu

tor told the jury

to use their “goo

d old ever yd ay horse se

nse in weighing the evidence . . . .” Petitioner alleges that us ing th e phrase “horse sense” lowered the State’s burden of proof.

After a review of

the prosecutor’s closing argument, we believe that the prosecutor did not refer to Pet itioner specific

ally as bein

g “mentally

incompetent,” but

used the phrase in

a generic
sense while explaining to the jury the circu mstan ces under which p

olice officers w

ere called to Petitioner’s house and why law enforcement officials are not required to have a warrant to enter a dwelling in some situations, e.g., where mentally disturbed people may be present and

could harm themselves or others. As for Evans’ failure to object to the comments misrepresenting his firearm,
we find no prejudice

to Petitioner as a result of this. Granted, the record shows that the prosecutor referred to Petitioner’s gun as a “.44 magnum.” But, in the same breath, the prosecutor also called the weapon a “.44 we

apon” and a “.44

calib er” pistol. In all likeliho od, the jury n

oticed these inconsistencies , but it had the opportunity to observe the actual gun when it was introduced as evidence during trial. Consequently, Petitioner’s argument that because the firearm was, in fact, a “.44 Special,” he was “convicted on a weapon that didn’t exist” is without merit. Finally, Petitioner has shown no prejudice

by Evans’ f

ailure to object to

the prosecutor’ s use of the phrase “horse sense.” In sum, we conclude that Petitioner hasfailed to show the State’s comments were prejudicial to his case and an

y error wo

uld be harmless.
Next, Petitioner argues that Evans was ineffective for failing to impeach State witnesses when possible to do so. Specifica lly, he asse rts that the police officers’ testimony at trial was inconsi stentwith the information contained in the police reports and the officers’ collec tiv e testimonyat the preliminary hearing. To provide an ex amp le, Petitioner test

ified at the postconviction hearing that one of the police rep

orts stated that the inc

ident occurred o

utside the house andanother

said that it happen

ed inside. Petitione

r further claims

that inconsistencies of this nature providedEvans with

numerous opportun

ities to attack the

credibility

of the officers

which Evans did not take. According to Petitioner, these omissions resulted in prejudice to Petitioner’s case.-15-

The post-conviction court heard testimony from Evans that he was familia

r with the facts in Petitioner’s case and tha t he had con duc ted an i n-d ept h pr eli min ary hearing cr oss-examination of the State’s witnesses. Th is pr eparatory knowledge ga

ve Evans the oppor

tunity to examin

e those
samewitnesses during trial, at which time he inquired about any inconsistencies that existed between the testimony g

iven during tria

l and those stateme

nts furnished during the preliminary hearing and in their reports. Evans further claimed that there were no major inc onsistencies which assisted Pet iti one r’s defe nse , an d th e po st- con vic tio n co urt accr edi ted his tes tim ony.
Our review of the record reveals that Petitioner has misstated the facts of what occurred during his trial. First, Evans did impeach at least one of the State’s witnesses. Evans played the jury
a tape of statements given by Officer Harris at the preliminary

hearing which purportedly contained prior statements inconsistent with his testimony at trial. Although the record shows that Evans did notexplore any o

ther major incons

ist encie s, Petitioner did not offer proof tha

t any discre

pancies, other than the aforementioned conflict in the police rep ort s, existed. Furthermore, we fail to see what bearing the location of the shooting would have on the major issues in this case other than to damage Petitioner’s position. If the police had observed Petitioner

outside his house with a gun, they could arguably have followed him

into his house under

various legal th

eories including

hot pursuit, exigent circumstances,

risk of danger

to others, and risk of escap e, to name a few.

It is conceivable that Petitioner’s counsel considered this possibility and decided to forgo impeachment on that basis. In sum, w e agree with the post-conviction court’s conclusion regarding this issue. Petitioner has failedto provide allegations of fact to support either a finding of incompetence on the part of trial counsel or prejudice to his defense.

Petitioner also asserts that Evans was ineffective f or failing to properly conduct pre-trial discovery, asdemonstrated by the fact that Evans had no knowledge that defense witness Hill had previously

claimed that

his statement

to police was coe

rced. The reco

rd shows that Evans

was crossexamined during the post-c onviction hearing

as to why he d

id not file a motion to

suppress Hil

l’ s statement. The po s t-conviction cour t noted that there

was no legal bas

is for Evans to supp

ress a witness’ statement, “whether illegal or coerced or any thing else.” We are likewise unaware of any legal authority which would support such a motion. In addition, Hill testified at both the trial and the post-conviction hear ing. Con seq uen tly, any misstate ments or confusion

regarding vo

luntariness
or ve racity could have been explored easily at that time. Since the record shows that Petitioner offered no other proof of Evans’ deficient handling of discovery m

atters, we find th

e record devoid of any factual basis for Petitioner’s allegations of prejudice.

Petitioner’s next complaint concerns the composition of the jury. Specifically, Petitioner argues that Evans was in effective f

or failing to object as the State “systematically ” and “in ten tio nal ly” excluded African-A merican jurors during voir dire. This allegation is unfounded. First and foremost, Petitioner’s jury contained two African-American jurors. Second, the postconviction court foundthat Petitioner presented no proof at the hearing to show anything resembling a “ Batson ” type of error. After a review of the r ecord, we agree.-16-

Petitioner further alleges that Evans was ineffective for failing to cal l an expert witness to challenge the State’s evidence. Petitioner claims that experts should have been called “to challen ge bulletholes and criminal intent.” The post-conviction court found that Petitioner presented no proof in support of th

is assertion. Petitioner also failed to offer an expert to testify at the evidentiary hearing. Both are necessary in a challenge such as this. Neither the t rial court nor the

appellate court may be call

ed upon to

speculate as to what an expert would have said at trial. See Tenn. R. Evid. 103(a)(2); Alley v. State , 882 S.W.2d 810, 815-16 (Tenn. Crim. App. 1 994) (offers of proof enable consideration of the issue on appeal). We agree with the post-conviction court’s conclusion as we also find nothing in the

record to indica

te what an expert w

ould have testified to or what

difference expert testimony would have made in the outcome of Petitioner’s trial. Hence, we also find no prejudice to Petitioner’s case.

Petitioner continues with a claim that Evans was ineffective because he failed to move for
a mistrial after discovering evidence of jury misconduct. Specifica lly, Petitioner

insists that he was entitled to a mistrial because during deliberations the jury called the judge and both at

torneys into the jury room to inquire, “Can we convict h im of anythin

g?” This argumen

t is first made on appe

al. Hence, it is waived. See

Tenn. Code Ann. § 40-30-206(f)-(g) (1997). Even so, we note that beca use of the necessity in permitting jurors to avoid misunderstandings, virtually all jurisdictions including Tennessee hold

that the judge ha

s discretion to per

mit questions by jurors. See State v. Forbes , 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995) (trial court has the authority to respond to jury questions with a supplementa

l instruction); State v. Moore , 751 S.W.2d 464, 467 (Tenn. Crim. App. 1988).
Petitioner also alleges that Evans was ineffective for failing to properly prepa re Petitioner for the sentenc ing hearing. Petitioner claims (1) that Evans did not have a proper sentencing report for the court to review during the sentencing hearing and (2) that Evans failed to file a motion for probation, which was proper since Petitioner w

as a first time

offender. Regarding the former, the
re cordshows that Evans did all that he reaso

nably could

do to assist Petitione

r. Peti tioner’ s sentencing report was incomplete because Petitioner had refused to cooperate with the probation office during its prepa

ration of the rep

ort. After Evans explained to the court that the pre-sentencing questionnaire was not properly completed, and the probation office had no information beca use Petitioner was “distraught,” the court agreed to let Petitioner testify as to those matters not contained in the report. However, Petitioner refused.
Respecting Petitioner’s motion for probation, Tenn. Cod e Ann. § 40-35-303(a) sta tes, in relevant part, that “[a] defendant shall be eligible for probation under the provisions of this chapter if the sentence ac

tually impose d is eight (8) years or less . . . .” Petitioner, sentenced to three concurrent

terms of nine (9) years, was not eligible for pr

obation. Further

more, the statute

provides that “[t]here shall be no ‘petition for probation’ filed by the defendant.” Tenn. Code Ann. § 40-35- 303(b ) (1997). Instead, “probation shall be automatically consider ed by the court as a senten cin g alternative for eligible defendants . . . .” Id. Clearly, co unsel had no duty

to file such a motion, and Petitioner would be ineligible, even if he did.-17-

Petitioner further claims that Evans was ineffective for failing to file a motion to dismiss the indictments

against him. Petiti

oner argues th

at the indictments w

ere void becaus

e they did not charge Petitioner with any crime relating to the reason that the police were initi

ally summoned to his house. This cla

im has no me

rit. Prosecutors, both state and federal, are granted extraordinary discretion when determining whether an individual should be charged with a crime and what tho

se charges will be. Few legal constraints exist. Pr

obable cause, sufficiency of the evidence, sentencing possibilities and community goals are several examples. There is no law which requir es the State to charge a de

fendant with a cr

ime relating to it

s initial contact wi

th a defendant.
Petitioner’s last issue concerning ineffective assistance of counsel concerns Evans’ failure to poll the jury and verify that the verdict was unanimous. Polli

ng is discretiona

ry. Tenn. R.

Crim. P. 31(d) states that “

the jury sha

ll be poll ed a t the request of any party or upon the court’s own motion.” Petitioner p resented the trial court with no proof concerning what, if any, differe nce polling would have made in the outcome of Petitioner’s trial or that theverdict was anything other than unanimous.

In sum, Petitioner fai

led to establish tha

t the services re

ndered or the ad

vice given him

by his
co unsel were below the range of competence demanded of attorney s in criminal cas es. Equally important, Petitioner did not show that any of counsel’s decisions had an adverse effect on h i s defense. Accordingly, Petitioner is not entitled to relief based on his claims of ineffective assistance of trial counsel for the various reasons stated above.

B. Post-Conviction Court Errors

We turn now to the errors allegedly committed by the post-conviction court. Petitioner

first contends that the post-conviction court committed reversible error when it failed to rule upon every issue a s required by Tenn. Code Ann. § 40-30-211. After a review of the record and the post

conviction court’s order denying relief, we disag ree.
Petitioner relies on Tenn. Code Ann. § 40-30-211(b) which provides the following: “[u]pon final disposition of every petition, the court shall enter a final order . . . and shall set forth in the order or a written memorandum of the case all grounds presented, and shall state the findings of fact andconclusions of law with regard t o each such ground.” Petitioner’s post-conviction petition containedten issues. The post-conviction court heard arguments and proof over a period of months, beginning in April and extendin g well into

October. When the proceeding was completed, the court issued an order denying relief which specifica lly addre ssed all of Petitioner’s issues save one–whether

the State’s closing argument contained erroneous and inflammatory remarks sufficient to unfairly prejudice the jury ag ainst Petitioner.
Although the post-conviction court did not make extensive findings of fact pursuant to Tenn. Code Ann. § 40-30-211 regarding each and every issue, a failur e to state findings of fact and conclusions of law does not always require a reversal or a r emand for

further findings. See Statev. Swanson , 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984). A record where the court order denying-18-

post-conviction relief does not c ontain findings of

fact a nd conclu sions of law which are all-inclusive
can still be sufficient to effectuate meaningful appellate review. See Rickman v. State , 972 S.W.2d 687, 692 (Tenn. Crim. App. 1997). Here, the post-conviction court’s record was s ufficient for us to do so.

With regard to the one issue not specifically addressed by the trial court

in its order denying relief–whether

the State’s closing argument contained erroneous an d infl ammatory remarks sufficient to unfairly

prejudice the jur

y–we note

that we have already examined the State’s closing argument during our

review of Petitioner’s ineffective assistance of counsel claims. We determined that the State’s comments wereharmless and did not prejudice Petitioner. Furthermore, the record shows that the post-conviction court did, in fact , hear Petitioner’s argument on the issue of the State’s closing remarks. Hence, the absence of specific findings of fac tpertaining to this single issue
was most likely an

oversight on the

part of the court

. As a result, we f

ind any err

or to be harmless. Petitioner is not entitled to relief on this issue.
Second, Petitioner contends that the post-conviction court erred when it found that Shelby County Criminal CourtRule 6.03 barred the filing of pre-trial motio ns by Petitione

r's counsel. Rule 6.03 plainly requires that

“[a]ll preliminary motions, including motions to dismiss, and motions to suppressevide nce . . . must be filed in writing not more than twenty (20) day s after formal arraignment

. . . .” Although the

ruleprovides that an extension may be granted for “good ca use,” the Petitioner offered no proof at the post-conviction hearing of e xtenuating circumstances which would justify such

a request. Neith

er did Petitioner o

ffer any e vidence to

support his

contention that
a motion to suppress, or any other motion for that matter, would have been successful. Petitioner is not entitled to relief on this issue.
Next, Petition er submi ts that the post-con viction court commi

tted reversible e

rror when it refused to bifurcate the proceedings or grant a continuance so that

a witness who was not present at the post-conviction he

aring could test

ify at a late

r time. The witness

in issue, Walker Gwinn, was
one of two attorneys who handled Petitioner’s direct appeal as of right of his convictions. Petitioner claims that Gwinn’s expert testimony regarding what a proper attorney “would do” and

“should have done” and what should have been “done di fferentl y” was crucial to his argument for ineffec tive assistance of counsel. Gwinn was subpoenaed to testify at Petitioner’s post-conviction hearing on June 12, 1998, but failed to show.

It is well settled that the grant or

denial of a continuance rests within the sound discretion of the trial judge. Harris v. State , 947 S.W. 2d 156, 173 (Tenn. Cri m. App. 199 6) (citing State v. Morgan , 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991)). When a defendant challenges the denial of a continuance a judgment will only be reversed if (1) the denial w

as an abuse

of discretion, and (2) the defendant was prejudiced, to be proved by a showing tha t there is a reasonable probabi li ty that, had the continuance been granted, the resu lts of the procee ding would have b

een different. Morgan , 825 S.W.2 d at 117 (cit ing State v. Dykes , 803 S.W.2d 250, 257 (T enn. Crim. App. 1990) (overruled on oth

er grounds)); Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973)).-19-

There are three problems with Petitioner’s contention here. First, the argument Petitioner presented to the post-convic

tion court, after

which it refu sed to h ear G win n’s tes tim ony, was based
on d ifferent grounds than presented in this appeal. During the post-conviction proceeding, Petitioner argued that Gwinn’s testim

ony was rel

evant because G

winn’s assistance

as counsel during his a

ppeal
was ineffective. If so, this complaint shoul d have been a llege d in t he pet itio n. It was not. After the court noted that Gwinn’s

name was not mentioned in

any of the p

leadings,it correctly decided that Gwinn’s testimony wa

s unnecessary

to decide the matte

rs before it

and denied Petition

er’s request. Not until this appeal did Petitioner arguethat Gwinn’s testim ony was esse

ntial toprovide evidence against Evans.

The secon d probl em with Petitioner’s argument lies with the record which reveals that Petitioner made no offer of

p roof during his post-conviction proceedings as to what facts Gwinn would testify to or why they

were criticalto his argument. This omission was conceivably a factor in the post-conviction court’s decision that Gwinn’s testimony was unnecessary. After reviewing the record, we find that the court did not abuse

its discretion when it denied Petitioner’s request for
a continuance. And, sincePetitioner did not of fer any pr oof that the resul

t of the proceedi

ng would have been different with Gwinn’s testimony, Petitioner was not prejudiced by its absence.

The third problem with Petitioner’s argument that he was unfairly denied a continuance lies withthe fact

that the proceed

ing was, in fact

, continued. Gwinn did not show up to testify during the hearing on June 12, 1999. However, the pos t-conviction cour t granted the Sta

te’s motion to continue in a hearing on October 16, 1999, and the evidentiary hearing was concluded on October 26, 1999. The record does not show whether Petitioner madeanother attempt to secure testimony from Gwinn. Interestingly, Pet itioner argued against the October continuance. Petitioner is not entitled to relief on this issue.

Petitioner also argues tha

t the judge’s re

fusal to disqualify

himself because of prejudice and bias against Petitione

r constitutes err

or by the co

urt. This allega

tion stems from a sta

tement the postconviction judge made to Petitioner when Petitioner requested permission from the court to remove Johnson as his counsel andproceed pro se . After listening to Petitioner’s request, the judge advised Petitioner that he should heed his attorney’s advice and “not try to run the show because there was
an old saying, ‘anyone who r epresents himself has a

fool for a client.’” Thereafter, Petitioner filed
a motion “for recu

sal of presi

ding judge ” based upon this statement. In the order denying Peti tio ner’s motion, the judge explained that he in no way implied or intended to imply that the Petitioner was a “fool.” I

nstead, the judg

e was merely

encouraging

Petitioner to coope

rate with his att orn ey. Disqualification of a judge is governed by Tennessee Supre me Court Rule 10, Canon 3(E). This rule states,

in relevant part, that “[a] judge shall disqualify himself or herself in a proceeding in whi ch the j udge’s impartia lity might re

asonably be

questioned.” Circ

umstances where

this is required include, but are not limited to, situations where “thejudge has a personal bias or prejudice concerning a party . . .

.” Tenn. Sup. Ct. R. 10 , Canon 3(E)(1)(

a). A judge’s de

te r mination of-20-

whether he will disqualify

himself lies within

hi s discretion. Wiseman v. Spaulding , 573 S.W.2d 490 (Tenn. Ct. App. 1978).

We find the judge’s comment to be of a brief and general nature and not specifically directed at Petitioner. Having reviewed the record and the judge’s comment in context, we find no reasonable basis for questioning the trial court's impartiality. Petitioner is not entitled to relief on this issue.

Petitioner’s next issue, that the trial court did not have jurisdi

ction to convict him b

ecause one of the indictments failed to include the mens rea of “intentionally” in its de scripti on of the offense, is also without merit

. Wh en Petitioner raised this issue during his post-conviction proceeding, the State

objected on the ground that Petitioner was precluded from arguing

the validity of the indictment at this juncture, claiming the iss ue had been “waived.” The court sustained the State’s objection and the matter was not discussed further at that time. In its order denying relief, the post-conviction court concluded that “[t]he indictment sufficiently placed the [Petition er] on notice of the charges against him . . . .” The post-conviction court’s decision that Petitioner’s indictmentwas sufficient w as correct,

but notbased upon the State’s contention that the issue was waived.

Waiver provisions do notapply to defects indicating that a court lacked jurisdiction or that the indictment failed to state an offense. Tenn. R. Crim. P. 12(b)(2); State v. Cart er , 988 S.W.2d 145, 148 (Tenn. 1999). Those defects may be “noticed by the court at any time during the pendency of the proceedings.” Tenn. R. Crim. P. 12(b)(2). Thus, the issue of Petitioner’s indictment was not waivedby the failure t o present the ground for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented.
On the other hand, an indictment is val id if it provides suf

ficient informat

ion to enable

the accused to know the accusation to be answered, to furnish the court with an adequate basis for proper entry of judgment, and to protect the accused from double jeopardy. State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997). In State v. Hill , the Tennessee Supreme Court held:

that for offenses which neither expressly require nor plainly dispe

nse withthe requirement

for a culpable mental state, an indictment which fails to allege such mental state will be sufficient to support prosecution and conviction for that offense so long as
(1) the language of the ind ictment is sufficient to meet the
cons titution al requiremen ts of noti ce to the accu sed of the ch arge against which the accused must d efend, adequat

e basis for entry of a pro per j udgm ent , an d pr ote cti on f rom dou ble jeo pard y; (2) the form of

the indictments

meets the requirements of Tenn.Code Ann. § 40-13-202; and-21- (3) the mental state can be logically inferred from the conduct alleged.

Id. at 726-27. Subsequently, our supreme court held that an indictment which includes a referenc e to the criminal statute that sets forth the mens re a is sufficient to give a defendant notice of the applicable

mental state. State v. S ledge , 15 S.W.3d 93, 95 (Ten n. 2000); Carter , 988 S.W.2d at 149 (citing Ruff v. State , 9 78 S.W.2d 95, 100 (Tenn. 1998)). “Thus, where the constitutional and statutory requirements outlined in Hillare met, anindictment that cites the pertinent statute and uses its language will be sufficient to support a conviction.” Carter , 988 S.W. 2d at 149 (q uoting Ruff, 978 S.W.2d 95, 100 (Tenn. 1998)).

In the instant c

ase, the challen

ged indictment st

ates, in pertinen

t part, as follows:

RO NNIE BRADFIELD on February 21, 1992, in Shel b y Cou nty, Tennessee, and before the finding of thi s indictment, did unlawfully

attempt to co mmit the offense of MURDER FIRST DEGREE as defin ed in T.C.A. 39-13- 202 in that he, the sa

id RONNIE BRADFIEL

D did unla wfully and d

eliberately

and with premeditation attempt to kill G.W. Harris, in violation of T.C.A. 39- 12-101, against the peace and dignity of the State of Te nnessee.
Petitio ner’s indictment include d the proper sec

tion from Tennesse

e Code Annotated and this , in turn, provided suf

ficient notice to Pe

titioner of the cha

rges against him. In addition, we hold under Hill

and Ruff that the mens rea

of “intentionally

” can be logica

lly inferred from the allegation that the act was committed with premeditation. Defendant is not entitled to relief on this issue.

Petitioner’s final two issues on appeal concern the jury’s conduct during deliber ation and the trial court’s instructions to the jury. Regarding the first, Petitioner contends that the jury behaved improperly

when it asked whether they could “find him guilty of anything.”

Petitioner alleges that this query indicated that the jury convicte d Petitioner “based

upon a duty to

protect society,” instead of upon the law and

instructions give

n them. Petitioner’ s second argume nt claims that instructions for “duress” and

“necessity” should have been given the jury. These two issues are restatements of allegations f

ormerly addressed in this appeal but couched in terms of ineffective a ssistance of counsel. Pursuant to those claims, we have already determined that the jury’s conduct did not result in prejudice to Petitioner

and that the facts of Petitioner’s case did not warrant or support the def

ense of necessity or duress. Notwithstanding this fact, these issues are also waived.

Waiver can occur in various ways. The Tennessee Rules of Appellate Procedure provide that

in all cases tried by a jury, no issue pre sented for r eview shall

be predicated

upon error in the admission or exclusion of evidence, jury instructions granted or re fused, misconduc

t of ju rors, p arties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is soug ht, u nless the-22- samewas specificall

y stated in a motion fo

r new trial; otherwise such issues will be treated as waived.

Tenn. R. App. P. 3(e). Under the Post-Convict ion Pr ocedure Act, waiver occurs where “the petitioner personally or

through an attorney failed to present [the ground] for determination in any proceeding before a court o f competent jurisd

iction in which the ground could have been presented.” Tenn. Code Ann. § 40-30-206(g) (1997). Waiver in a post-conviction context is determined by an objective standard under which a petitioner is bound by the action or inaction of his attorney. House
v. State , 911 S.W.2d 705, 714 (Tenn. 1996). The presumption that a ground n ot raised has been waivedis rebuttable, however. Tenn. Code Ann. § 40-30-206(g). In order to re but the presumption, the petition must contai

n "allegations of fact supporting each claim for relief set forth in the petition andallegations of fact explaining why each gr ound was not previously presented in any ea rlier proceeding." Tenn. Code Ann. § 40-30-204(e) (1997).

The two issues discussed above are predicated on error committed during trial and were not raisedin Petitioner’s motion for new tri al. These issues w ere perfectly

suited for adjudic

ation in the trial court pursua

nt to a motion for ne

w trial or, if incl usion in a motion for new trial was not possible for good reason, presented

in a direct appeal to this Court. Petitioner has not rebutted the presumption of waiver

by supply

ing this Court with a

ny facts wh

ich explain why

these claims were notpreviously presented

or, in the alternative, presented in an appeal under the plain error doctrine. See Tenn. R. Crim. P. 52(b)

. We find no reason not to assume that we may determine waiver of issues in accordance with es ta blished legal procedure and our goals of finality in adjudica tion. Accordingly

, Petitioner is not en

titled to relief on

these issues.

IV. Conclusion

After a thorough review of the record and the law applicable

to the issues raised herein, we find that the Petitioner has failed to prove the allegations contained in his post-conviction petition. Accordingly, the judgment of the post-conviction court is AFFI RMED.

____________________________________ THOMAS T. WOODALL, JUDGE