IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 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 commit second degree murder, which this Court affirmed on direct appeal.

Petitioner subsequently filed a pro se petition together with an amended and supplemental petition

for post-conviction relief alleging, primarily, ineffective assistance of counsel. The post-conviction

judge denied relief following an evidentiary hearing which took place over numerous days.

Petitioner now appeals the judgment of the post-conviction court denying his petition. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID G. HAYES, J., joined.

Ronnie Bradfield, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

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 murder. After a jury trial, Petitioner was convicted in the Shelby County Criminal Court

of three counts of attempt to commit second degree murder and sentenced to three terms of nine

years to be served concurrently. Petitioner appealed his convictions, and this Court affirmed the trial

court’s judgment on July 19, 1995. State v. Ronnie Bradfield, No. 02C01-9306-CR-00112, 1995

WL 422787, Shelby County (Tenn. Crim. App., Jackson, July 19, 1995), perm. to appeal denied

(Tenn. 1996). Petitioner timely challenged his convictions in a pro se petition for post-conviction

relief and also through an amended and supplemental petition filed by appointed counsel. The

petition, as amended, primarily alleged ineffective assistance of trial counsel. The evidentiary
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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 post-conviction 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 Ann. § 40-30-211; (3) by ruling that Shelby County Criminal Court Rule

6.03 barred the filing of pre-trial motions by Petitioner's counsel; (4) by refusing to bifurcate the

proceedings or grant a continuance so that a witness who was not present at the post-conviction

hearing could testify at a later time; (5) by refusing 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 in the jury’s conduct during deliberations and in the trial court’s instructions to the

jury.

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. Regarding the first, ineffective assistance of counsel, we

conclude that Petitioner has not established counsel’s performance was below the level of

competence demanded under Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975). He has also failed to

establish prejudice as required under Strickland v. Washington, 466 U.S. 668 (1984). As 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) (1997). Accordingly, we affirm the postconviction court’s denial of relief.

I. Background

The facts leading to the underlying convictions are taken from a review of this Court’s

opinion in the direct appeal. On February 21, 1992, the Memphis Police Department received a call

that Petitioner was making threatening phone calls to the director of the police and the mayor.

Petitioner was standing outside his home when the police arrived. The police told Petitioner they

needed to speak with him, but he walked into his house as they approached. The police followed

Petitioner and entered his house, their weapons still in their holsters. They noticed the muzzle of a

gun in Petitioner’s possession. A brief shootout between Petitioner and the police ensued.

Afterward, Petitioner was arrested. 

Petitioner initially retained Walter Evans as counsel for trial. Shortly after the preliminary

hearing, Petitioner discharged Evans and retained attorneys Handel Durham and Alan Chambers.

Durham and Chambers represented Petitioner until two weeks prior to the trial date. At that time,

Petitioner fired Durham and Chambers and rehired Evans. Evans defended Petitioner throughout

the trial proceedings. At the conclusion of proof, Petitioner was convicted and sentenced. Petitioner

appealed. His sole issue on appeal was whether the evidence was sufficient to convict him. This

Court affirmed the trial court’s judgment.
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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) counsel 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 utilize documents which were available to impeach

prosecution witnesses and prove Petitioner's innocence; (4) counselfailed to investigate properly and

call witnesses for Petitioner; (5) counsel failed to develop all defenses available to Petitioner; (6)

counsel failed to object to improper and prejudicial comments by the State during closing argument;

(7) counsel failed 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

failed to object when the prosecutor selectively excluded African-American jurors during jury

selection. On June 17, 1997, Viola Johnson was appointed as Petitioner’s counsel to assist with his

post-conviction petition. Johnson prepared and filed an amended and supplemental petition which

contained allegations 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 witnesses when it was possible to do so. The amended

petition further alleged that, but for counsel's lack of preparation and professional errors, the results

of the proceeding would have been different. 

In December 1997, Petitioner was dissatisfied with Johnson’s legal assistance and filed a

motion for appointment of new counsel. Petitioner claimed, inter alia, that he and Johnson had

serious conflicts of interest, i.e., counsel hampered the progress of his defense and failed to represent

him in a “zealous” manner. Johnson was allowed to withdraw from the case and on January 20,

1998, Petitioner was appointed new counsel, Garland Erguden. Petitioner thereafter filed a pro se

motion requesting 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-Conviction Hearing

The post-conviction hearing began on April 24, 1998 and was held sporadically 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 attorneys involved in his postconviction petition, and a neighbor. The State’s only proof was the testimony of the two attorneys

who handled Petitioner’s case after the preliminary hearing until two weeks prior to trial when

Petitioner rehired Evans. 

Petitioner testified that his trial counsel, Walter Evans, was ineffective for numerousreasons.

Petitioner argued that Evans failed to handle pre-trial procedures appropriately. Specifically, he
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alleged that Evans did not file the proper pre-trial motions, including motions for impeachment,

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 flawed in that it omitted the word “intentionally” in the

description for first-degree murder. In addition, Petitioner argued that Evans failed to investigate

Petitioner’s case properly. Petitioner claimed that he gave Evans a list of fourteen witnesses who

had information relevant to Petitioner’s defense but that Evans did not talk to any of them or call

them to testify during trial. 

Regarding Evans’ performance during trial, Petitioner alleged that Evans should have

objected to the racially-biased selection of jurors. Petitioner complained that the prosecutor

systematically excluded all African-American candidates for jury duty during voir dire and,

consequently, his trial was constitutionally infirm. Petitioner further testified that Evans failed to

impeach State witnesses and to object to any one of the many erroneous statements made by the

prosecutor during the trial. For example, Petitioner claimed that Evans should have pointed out to

the jury the fact that the testimony of the police officers given at trial conflicted with the information

contained in their 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

weapon and that 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 support this statement.

Petitioner argued that an effective attorney would have called experts to attest to which holes, if any,

were truly bullet holes. Petitioner testified that Evans was also ineffective at trial when he neglected

to develop additional defenses for Petitioner, such as duress and necessity, which were appropriate

given the facts of the case. Petitioner claimed that Evans failed to object to improper statements

made by the prosecutor 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 also erred when he used the

terms “moral certainty” and “let the mind rest easy with the decision that you make” during jury

instructions. Petitioner claimed that the way the judge placed these phrases within the framework

of the jury instruction lessened the State’s burden of proof and, therefore, Evans should have

objected to it. 

Concerning Evans’ post-trial performance, Petitioner testified that Evans was ineffective

during the sentencing process because he did not fully explain to Petitioner how the process

operated. Moreover, Petitioner claimed that Evans failed to present mitigating factors to the court

in Petitioner’s behalf. For instance, Petitioner believed that the sentencing hearing was a proper

forum for Evans to bring forth character witnesses to testify to Petitioner’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 could only

remember two. Petitioner did not explain to the court how the testimony of any of the witnesses
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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 Petitioner was 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

failed to 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 Petitioner produce the character witnesses who would

have testified for him at the sentencing hearing and also give the court a list of the African-American

jurors who were systematically excluded by the prosecutor at his trial. Petitioner declined to produce

this information and acknowledged that his jury did include two African-American jurors.

Petitioner’s trial counsel, Walter 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 that 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 entry and selfdefense, and self-defense did not require testimony from anyone 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 was only two weeks away. Moreover, 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 was familiar with Petitioner’s case, however, because he

represented Petitioner at the preliminary hearing and had conducted a thorough examination of the

police officers at that time. In response to questions concerning Evans’ failure to file pre-trial

motions, particularly a motion to suppress, Evans testified that by the time he was reinstated as

Petitioner’s counsel the 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. Regarding Evans’ failure to impeach the police officers’ testimony, Evans testified that

he cross-examined the officers at trial with a view to explore any and all inconsistencies in their

statements. Moreover, before each cross-examination was concluded, Evans asked Petitioner

whether there were any questions that Petitioner wanted Evans to ask the witness. Lastly, Evans

testified that he filed no mitigating factors at the sentencing hearing because none applied.

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

remembered talking with Evans but did not recall the actual conversation. Hill also claimed that he

did not testify at Petitioner’s trial, even though the record shows he did. He further claimed that he

did not remember any of the witnesses who testified, although he recalled being present in the

courtroom.
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Odester Hudson, Petitioner’s mother, testified that she and a man named Thomas Hill were

presented to 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 “everywhere” 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 Herenton in surveillance [sic] because they did

not have the guy . . . .” 

Viola Johnson, one of Petitioner’s attorneys, testified that she represented Petitioner for a

short while during his post-conviction 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 was forthcoming with access to the information in his files.

Johnson did not recall discovering any relevant or necessary witnesses that Evans did not call to

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

The State’s sole evidence was the testimony of the attorneys, Handel Durham and Alan

Chambers, who handled Petitioner’s case after the preliminary hearing until two weeks prior to trial

when Evans reassumed the role of counsel. Durham testified that the representation of Petitioner

by himself and his partner, Alan Chambers, went smoothly until Petitioner wanted to proceed with

a novel defense theory: Petitioner believed that whenever any person entered onto another person’s

property, the property owner had a right to shoot them. Durham explained to Petitioner that his

reasoning was erroneous and without basis in the law. As Petitioner’s counsel, he and his partner

felt that a mental evaluation might be advantageous in resolving some of Petitioner’s legal matters,

but Petitioner adamantly refused to cooperate to this end.

Durham further testified that he requested a witness list from Petitioner but never received

one. After Durham and his partner were fired by Petitioner, they gave Evans all of the materials they

had gathered in preparation of Petitioner’s defense. Durham testified 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-year sentence and also Durham’s concern that Petitioner should have a mental evaluation.

In addition, Durham implored Petitioner to give up the legal theory that a person was entitled to

shoot whomever might wander onto his property and reiterated the fact that Petitioner refused to give

them a 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 representation. On both occasions, Petitioner

threatened to “blow the brains out” of Durham and his staff.

Alan Chambers, co-counsel with Durham, testified that 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 competent to stand trial.

Chambers also voiced his concerns regarding Petitioner’s “hostile, fearful, and suspicious” behavior
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toward them and Petitioner’s inability to logically assess his legal situation. Chambers confirmed

that both he and Durham had requested a witness list from Petitioner but that none was forthcoming.

At the conclusion ofthe evidentiaryhearing, the post-conviction court denied Petitioner relief

in a written order. The order contained the following findings and conclusions: (1) Evans was not

ineffective when 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 issue was sufficient to place Petitioner on notice of the charges

against him; (4) Petitioner failed to show that because Evans did not file motions and perform

investigations, he was therefore ineffective or prove that, but for these alleged errors, the verdict

would have been different; (5) Petitioner failed to present proof as to which jury 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 as to what facts the “mystery witnesses” would

have testified to and, therefore, Evans’ failure to locate and call them does not constitute ineffective

assistance of counsel; and (7) Petitioner failed to present proof regarding what African-American

jurors were systematically 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 pleadings 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 jurist and, further, that his rights to

a fair trial were not violated by ineffective representation of counsel. 

III. Analysis

Petitioner's request for post-conviction relief is governed by the Post-Conviction Procedure

Act of 1995. See Tenn. Code Ann. § 40-30-201 to -310 (1997). In order to obtain post-conviction

relief, a petitioner must allege that his conviction or sentence is void or voidable because of an

abridgement of a constitutional right. Id. § 40-30-203 (1997). Petitioner must also include

allegations of fact supporting each claim for relief set forth in the petition. Id. § 40-30-204(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 previously determined.

Id. § 40-30-206(f) (1997). Section 40-30-206 defines "waived" and "previously determined" as

follows:

(g) A ground for relief is waived if the petitioner personally or

through an attorney failed to present it for determination in any

proceeding before a court of competent jurisdiction in which the

ground could have been presented unless:

(1) The claim for relief is based upon a constitutional

right not recognized as existing at the time of trial if
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either the federal or state constitution requires

retroactive application of that right; or

(2) The failure to present the ground was the result of

state action in violation of the federal or state

constitution. 

(h) A ground for relief is previously determined if a court of

competent jurisdiction has ruled on the merits after a full and fair

hearing. A full and fair hearing has occurred where the petitioner is

afforded the opportunity to call witnesses and otherwise present

evidence, regardless of whether the petitioner actually introduced any

evidence.

Id. § 40-30-206(g)-(h). There is a rebuttable presumption of waiver when a petitioner fails to raise

a ground for relief before a court of competent jurisdiction in which the ground should have been

presented, which may be overcome by allegations of fact explaining why each ground for relief was

not previously presented. Id. §§ 40-30-210(f), -204(e).

Findings of fact and conclusions of law made by the post-conviction court are given the

weight of a jury verdict. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

Consequently, this Court is bound by those findings unless the evidence contained in the record

preponderates otherwise. Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995). Since the postconviction court judge found the petitioner failed to establish that he was entitled to post-conviction

relief, we review the record for the purpose of determining whether the facts preponderate against

the judgment entered by the post-conviction court. In doing so, we are bound by certain wellestablished rules 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 regarding the credibility of the witnesses, the weight and value to be given

to their testimony, and the factual issues raised by the evidence are for resolution 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 assistance of

counsel raised on direct appeal raises mixed questions of law and fact, and thus is subject to a de

novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 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 correctness, which is overcome only when the preponderance of the evidence

is contrary to the trial court’s findings of fact. Fields, ___ S.W.3d at ___; see also Henley v. State,

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 whether the

defendant was prejudiced by that deficiency, appellate courts should conduct a purely de novo
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review, according to the trial court’s conclusions of law no deference or presumption 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 required 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) requires that the petitioner include allegations of fact to support

each claim 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) assigns 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 Procedure Act is 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 remains necessary. The findings

and conclusions of the post-conviction court reveal that the proof presented by Petitioner at the

evidentiary hearings was, for many issues, insufficient to allow the court to grant Petitioner relief.

Petitioner’s brief for this appeal similarly consists of myriad bare allegations and conclusory

statements. 

A. Ineffective Assistance of Counsel

Regarding Petitioner’s allegations about his trial counsel, Petitioner contends in this appeal

that he was denied effective assistance due to counsel’s (1) failure to investigate thoroughly; (2)

failure to call the witnesses named by Petitioner; (3) failure to file a pre-trial motion to suppress

illegally obtained evidence; (4) failure to raise the defenses of duress and necessity; (5) failure to

object to various prejudicial and improper statements made by the State in its closing argument; (6)

failure to impeach State witnesses when possible to do so; (7) failure to properly conduct discovery;

(8) failure to object when the State selectively excluded African-American jurors; (9) failure to call

an expert witness to challenge the prosecution’s evidence when proper; (10) failure to move for a

mistrial after jury misconduct; (11) failure to have a proper sentencing report for the 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 charges because the indictments did not charge

Petitioner with any crime relating 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 Petitioner’s allegations.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, he must first establish that the services rendered or the advice given were below “the range

of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the

defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
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establish either factor, he is not entitled to relief. Our supreme court described the standard of

review as follows:

Because a petitioner must establish both prongs of the test, a failure

to prove either deficiency or prejudice provides a sufficient basis to

deny relief on the ineffective assistance claim. Indeed, a court need

not address the components in any particular order or even address

both if the defendant makes an insufficient showing of one

component. 

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective assistance of counsel,

the petitioner is not entitled to the benefit of hindsight. This Court may not 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 adequate 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 these 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 because 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 Petitioner and the 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 trial date

would nevertheless remain firm. 

As a corollary to his claim regarding improper investigation, Petitioner also alleges that

Evans failed to talk to or call the witnesses on a list that Petitioner gave to him. The evidence

presented regarding these fourteen “mystery witnesses” who could have testified consists solely of

Petitioner’s own statement to that effect. According to the record, the great weight of evidence leans

toward a 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 testified at the trial and the post-conviction hearing.

Petitioner’s reluctance to provide his counsel with names of witnesses who may have information

persisted in the face of repeated requests by all three attorneys. At the post-conviction hearing,

Petitioner was asked again to provide the names of the fourteen persons that he claimed should have

been interviewed and/or called to testify. 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 witnesses were not present in court to testify.
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In its order denying relief, the post-conviction court noted the following: the only witnesses

to the incident which gave rise to Petitioner’s conviction testified for the defense at the 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, Petitioner made no offer of 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

failed to present any proof that, but for counsel’s ineffective representation, the outcome would have

been any different. 

When a petitioner contends that trial counsel failed to discover, interview, or present

witnesses in support of his defense, these witnesses 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 interviewed, (c) the

failure to discover or interview said witness(es) inured to petitioner’s prejudice, or (d) the failure to

have a known witness present or called to testify resulted in the denial of critical evidence which

prejudiced the petitioner’s case. Id. It is elementary that neither a trial judge 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 operate in a vacuum.

Even if Petitioner was able to establish that 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 can produce a material witness who (a) could have been found by a reasonable

investigation and (b) would have testified favorably in support of the defense if called. Id. Petitioner

did not present the post-conviction court with any of the above and, therefore, failed to establish the

prejudice requirement mandated by Strickland v. Washington. 

Petitioner also asserts that Evans was ineffective when he failed to file a pre-trial motion to

suppress evidence illegally obtained as a result of unlawful entry into his house. However, Evans

testified that he was precluded from filing pre-trial motions by Shelby County Criminal Court Rule

6.03. This rule requires that “[a]ll preliminary motions, including motions to dismiss, and motions

to suppress evidence . . . must be filed in writing not more than twenty (20) days after formal

arraignment . . . ” Although the rule provides that an extension may be granted upon request for

“good cause,” Petitioner offered no proof of circumstances that would have justified such a request

or any evidence to support his contention that a motion to suppress would have been successful. 

Moreover, Evans testified that he “extensively” argued 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 trial record also reveals that, in ruling on post-trial motions, the

trial court observed that Evans “forcibly argued to the jury that the officers had no right to go into

[Petitioner’s] house.” Reviewing the trial record, we agree that Evans adequately developed 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 forbade filing of a motion to

suppress. Further, the court stated that it was presented with no proof that any evidence which was

admitted was obtained illegally, nor was there any proof presented that a factual basis 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 Petitioner at the post-conviction 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 warrant

the total exclusion of what takes place afterward. State v. George Wesley Harville, Jr., No. 01C01-

9607-CC-00300, 1997 WL 661726 at *3, Sequatchie County (Tenn. Crim. App., Nashville, Oct. 24,

1997). This is particularly true of crimes committed subsequent to the alleged Fourth Amendment

violation. Id.; see United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997) (where the suspect’s

response to an illegal stop was “itself a new, distinct crime, then the police may constitutionally

arrest [him] for that crime.”). We conclude that the record contains neither a factual nor legal basis

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 duress and necessity. The defense of duress is defined as follows:

(a) Duress is a defense to prosecution where the person or a third

person is threatened with harm which is present, imminent,

impending and of such a nature to induce a well-grounded

apprehension of 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 which the person cannot

withdraw in safety. Further, the desirability and urgency of avoiding

the harm must clearly outweigh, according to ordinary standards of

reasonableness, the harm sought to be prevented by the law

proscribing the conduct.

Tenn.Code Ann. § 39-11-504 (1997). The Sentencing Commission Comments to this section advise

that, in order 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.1980). By

contrast, this defense is “unavailable to a personwho intentionally, knowingly, or recklessly becomes

involved in a situation in which it was probable that the person would be subjected to compulsion.”

Tenn. Code Ann. § 39-11-504(b). 

The record of the trial proceedings, the evidentiary hearings and the testimony of Petitioner’s

lawyer during the post-conviction hearing indicate that Petitioner did not have a legitimate defense

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 safety before he commits the illegal act.

Granted, the police entered Petitioner’s house. But the evidence adduced at trial shows that the

officers informed Petitioner when they arrived that they merely wanted 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 reveals no aggressive behavior on the part of the police which could instill a

well-grounded fear of death or serious bodily harm sufficient to warrant this action. Petitioner had

ample opportunity to safely withdraw, e.g., he had the option to put down his weapon. Furthermore,

even if a duress defense was possible, Petitioner negated the defense by “intentionally, knowingly,

or recklessly [becoming] involved in a situation in which it was probable 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 provides that a “defendant’s conduct is justified if: (1) [t]he person

reasonably believes the conduct is immediately necessary to avoid imminent harm; and (2) [t]he

desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of

reasonableness, 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 necessity”

and “excuses criminal conduct in those exceedingly rare situations where criminal activity is an

objectively reasonable response to an extreme situation.” Id. Sentencing Commission Comments

(emphasis added).

The defenses of duress and necessity are similar both in form and in the policy supporting

their availability. This Court has previously recognized a common law distinction between the two

defenses:

Common law historically distinguished between the defenses of

duress and necessity. Duress was said to excuse criminal conduct

where the actor was under an unlawful threat of imminent death or

serious bodily injury, which threat caused the actor to engage in

conduct violating the literal terms of the criminal law. While the

defense of duress covered the situation where the coercion had its

source in the actions of other human beings, the defense of necessity,

or choice of evils, traditionally covered the situation where physical

forces beyond the actor's control rendered illegal conduct the lesser

of two evils. Thus, where A destroyed a dike because B threatened

to kill him if he did not, A would argue that he acted under duress,

whereas if A destroyed the dike in order to protect more valuable

property from flooding, A could claim a defense of necessity.

State v. Green, 995 S.W.2d 591, 606 (Tenn. Crim. App. 1998) (quoting 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 both defenses 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 ordinary

firmness would have been 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 repeatedly and adamantly argued that he is not mentally incompetent,

we adjudge his actions under normal standards regarding human behavior. A person of ordinary

firmness should have been able to resist shooting at the police under Petitioner’s circumstances.

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 Evans 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

and improper statements made by the prosecutor in his or her closing argument, i.e., the prosecutor

suggested that Petitioner was “mentally disturbed,” the prosecutor misidentified the type of firearm

used by Petitioner, and the prosecutor told the jury to use their “good old everyday horse sense in

weighing the evidence . . . .” Petitioner alleges that using the 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 Petitioner specifically as being “mentally incompetent,” but used the phrase in a generic

sense while explaining to the jury the circumstances under which police officers were 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 weapon” and a “.44 caliber” pistol. In all likelihood, the jury noticed 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’ failure to object to the prosecutor’s use of the phrase “horse

sense.” In sum, we conclude that Petitioner has failed to show the State’s comments were prejudicial

to his case and any error would be harmless.

Next, Petitioner argues that Evans was ineffective for failing to impeach State witnesses

when possible to do so. Specifically, he asserts that the police officers’ testimony at trial was

inconsistent with the information contained in the police reports and the officers’ collective

testimony at the preliminary hearing. To provide an example, Petitioner testified at the postconviction hearing that one of the police reports stated that the incident occurred outside the house

and another said that it happened inside. Petitioner further claims that inconsistencies of this nature

provided Evans with numerous opportunities 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 familiar with the facts in

Petitioner’s case and that he had conducted an in-depth preliminary hearing cross-examination of

the State’s witnesses. This preparatory knowledge gave Evans the opportunity to examine those

same witnesses during trial, at which time he inquired about any inconsistencies that existed between

the testimony given during trial and those statements furnished during the preliminary hearing and

in their reports. Evans further claimed that there were no major inconsistencies which assisted

Petitioner’s defense, and the post-conviction court accredited his testimony.

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

not explore any other major inconsistencies, Petitioner did not offer proof that any discrepancies,

other than the aforementioned conflict in the police reports, 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 theories including hot pursuit,

exigent circumstances, risk of danger to others, and risk of escape, to name a few. It is conceivable

that Petitioner’s counsel considered this possibility and decided to forgo impeachment on that basis.

In sum, we agree with the post-conviction court’s conclusion regarding this issue. Petitioner has

failed to 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 for failing to properly conduct pre-trial

discovery, as demonstrated by the fact that Evans had no knowledge that defense witness Hill had

previously claimed that his statement to police was coerced. The record shows that Evans was crossexamined during the post-conviction hearing as to why he did not file a motion to suppress Hill’s

statement. The post-conviction court noted that there was no legal basis for Evans to suppress a

witness’ statement, “whether illegal or coerced or anything 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 hearing. Consequently, any misstatements or confusion regarding voluntariness

or veracity could have been explored easily at that time. Since the record shows that Petitioner

offered no other proof of Evans’ deficient handling of discovery matters, we find the 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 ineffective for failing to object as the State “systematically” and

“intentionally” excluded African-American jurors during voir dire. This allegation is unfounded.

First and foremost, Petitioner’s jury contained two African-American jurors. Second, the postconviction court found that Petitioner presented no proof at the hearing to show anything resembling

a “Batson” type of error. After a review of the record, we agree.
-16-

Petitioner further alleges that Evans was ineffective for failing to call an expert witness to

challenge the State’s evidence. Petitioner claims that experts should have been called “to challenge

bullet holes and criminal intent.” The post-conviction court found that Petitioner presented no proof

in support of this 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 trial court nor the appellate court

may be called 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. 1994) (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 indicate what an expert would 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. Specifically, Petitioner insists that he was

entitled to a mistrial because during deliberations the jury called the judge and both attorneys into

the jury room to inquire, “Can we convict him of anything?” This argument is first made on appeal.

Hence, it is waived. See Tenn. Code Ann. § 40-30-206(f)-(g) (1997). Even so, we note that because

of the necessity in permitting jurors to avoid misunderstandings, virtually all jurisdictions including

Tennessee hold that the judge has discretion to permit 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 supplemental 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 prepare Petitioner

for the sentencing 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 was a first time offender. Regarding the former, the

record shows that Evans did all that he reasonably could do to assist Petitioner. Petitioner’s

sentencing report was incomplete because Petitioner had refused to cooperate with the probation

office during its preparation of the report. After Evans explained to the court that the pre-sentencing

questionnaire was not properly completed, and the probation office had no information because

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. Code Ann. § 40-35-303(a) states, in

relevant part, that “[a] defendant shall be eligible for probation under the provisions of this chapter

if the sentence actually imposed is eight (8) years or less . . . .” Petitioner, sentenced to three

concurrent terms of nine (9) years, was not eligible for probation. Furthermore, 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 considered by the court as a sentencing

alternative for eligible defendants . . . .” Id. Clearly, counsel 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. Petitioner argues that the indictments were void because they did not

charge Petitioner with any crime relating to the reason that the police were initially summoned to his

house. This claim has no merit. Prosecutors, both state and federal, are granted extraordinary

discretion when determining whether an individual should be charged with a crime and what those

charges will be. Few legal constraints exist. Probable cause, sufficiency of the evidence, sentencing

possibilities and community goals are several examples. There is no law which requires the State

to charge a defendant with a crime relating to its initial contact with 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. Polling is discretionary. Tenn. R. Crim.

P. 31(d) states that “the jury shall be polled at the request of any party or upon the court’s own

motion.” Petitioner presented the trial court with no proof concerning what, if any, difference

polling would have made in the outcome of Petitioner’s trial or that the verdict was anything other

than unanimous.

In sum, Petitioner failed to establish that the services rendered or the advice given him by his

counsel were below the range of competence demanded of attorneys in criminal cases. Equally

important, Petitioner did not show that any of counsel’s decisions had an adverse effect on his

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 as required by Tenn. Code Ann. § 40-30-211. After a review of the record and the postconviction court’s order denying relief, we disagree. 

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

and conclusions of law with regard to each such ground.” Petitioner’s post-conviction petition

contained ten issues. The post-conviction court heard arguments and proof over a period of months,

beginning in April and extending well into October. When the proceeding was completed, the court

issued an order denying relief which specifically addressed all of Petitioner’s issues save

one–whether the State’s closing argument contained erroneous and inflammatory remarks sufficient

to unfairly prejudice the jury against 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 failure to state findings of fact and

conclusions of law does not always require a reversal or a remand for further findings. SeeState v.

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

post-conviction relief does not contain findings of fact and conclusions 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 sufficient 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 and inflammatory remarks

sufficient to unfairly prejudice the jury–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 were harmless 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 fact pertaining to this single issue

was most likely an oversight on the part of the court. As a result, we find any error 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 Court Rule 6.03 barred the filing of pre-trial motions by Petitioner's counsel. Rule

6.03 plainly requires that “[a]ll preliminary motions, including motions to dismiss, and motions to

suppress evidence . . . must be filed in writing not more than twenty (20) days after formal

arraignment . . . .” Although the rule provides that an extension may be granted for “good cause,”

the Petitioner offered no proof at the post-conviction hearing of extenuating circumstances which

would justify such a request. Neither did Petitioner offer any evidence 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, Petitioner submits that the post-conviction court committed reversible error when it

refused to bifurcate the proceedings or grant a continuance so that a witness who was not present at

the post-conviction hearing could testify at a later 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 differently” was crucial to his argument for ineffective

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. Crim. App. 1996) (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 was an abuse of discretion, and

(2) the defendant was prejudiced, to be proved by a showing that there is a reasonable probability

that, had the continuance been granted, the results of the proceeding would have been different.

Morgan, 825 S.W.2d at 117 (citing State v. Dykes, 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990)

(overruled on other 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-conviction court, after which it refused to hear Gwinn’s testimony, was based

on different grounds than presented in this appeal. During the post-conviction proceeding, Petitioner

argued that Gwinn’s testimony was relevant because Gwinn’s assistance as counsel during his appeal

was ineffective. If so, this complaint should have been alleged in the petition. It was not. After the

court noted that Gwinn’s name was not mentioned in any of the pleadings, it correctly decided that

Gwinn’s testimony was unnecessary to decide the matters before it and denied Petitioner’s request.

Not until this appeal did Petitioner argue that Gwinn’s testimony was essential to provide evidence

against Evans. 

The second problem with Petitioner’s argument lies with the record which reveals that

Petitioner made no offer of proof during his post-conviction proceedings as to what facts Gwinn

would testify to or why they were critical to 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, since Petitioner did not offer any proof that the result of the proceeding 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

with the fact that the proceeding was, in fact, continued. Gwinn did not show up to testify during

the hearing on June 12, 1999. However, the post-conviction court granted the State’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 made another attempt to secure testimony

from Gwinn. Interestingly, Petitioner argued against the October continuance. Petitioner is not

entitled to relief on this issue.

Petitioner also argues that the judge’s refusal to disqualify himself because of prejudice and

bias against Petitioner constitutes error by the court. This allegation stems from a statement the postconviction judge made to Petitioner when Petitioner requested permission from the court to remove

Johnson as his counsel and proceed 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 represents himself has a fool for a client.’” Thereafter, Petitioner filed

a motion “for recusal of presiding judge” based upon this statement. In the order denying

Petitioner’s motion, the judge explained that he in no way implied or intended to imply that the

Petitioner was a “fool.” Instead, the judge was merely encouraging Petitioner to cooperate with his

attorney.

Disqualification of a judge is governed by Tennessee Supreme Court Rule 10, Canon 3(E).

This rule states, in relevant part, that “[a] judge shall disqualify himself or herself in a proceeding

in which the judge’s impartiality might reasonably be questioned.” Circumstances where this is

required include, but are not limited to, situations where “the judge has a personal bias or prejudice

concerning a party . . . .” Tenn. Sup. Ct. R. 10, Canon 3(E)(1)(a). A judge’s determination of
-20-

whether he will disqualify himself lies within his 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 jurisdiction to convict him because

one of the indictments failed to include the mens rea of “intentionally” in its description of the

offense, is also without merit. When 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 issue 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 [Petitioner] on

notice of the charges against him . . . .” The post-conviction court’s decision that Petitioner’s

indictment was sufficient was correct, but not based upon the State’s contention that the issue was

waived. 

Waiver provisions do not apply 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. Carter, 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

waived by the failure to 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 valid if it provides sufficient information 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 dispense

with the 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 indictment is sufficient to meet the

constitutional requirements of notice to the accused of the charge

against which the accused must defend, adequate basis for entry of a

proper judgment, and protection from double jeopardy;

(2) the form of the indictments meets the requirements of Tenn.Code

Ann. § 40-13-202; and
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(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 reference

to the criminal statute that sets forth the mens rea is sufficient to give a defendant notice of the

applicable mental state. State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); Carter, 988 S.W.2d at 149

(citing Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998)). “Thus, where the constitutional and

statutory requirements outlined in Hill are met, an indictment that cites the pertinent statute and uses

its language will be sufficient to support a conviction.” Carter, 988 S.W.2d at 149 (quoting Ruff,

978 S.W.2d 95, 100 (Tenn. 1998)).

 In the instant case, the challenged indictment states, in pertinent part, as follows:

RONNIE BRADFIELD on February 21, 1992, in Shelby

County, Tennessee, and before the finding of this indictment, did

unlawfully attempt to commit the offense of MURDER FIRST

DEGREE as defined in T.C.A. 39-13-202 in that he, the said

RONNIE BRADFIELD did unlawfully and deliberately 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 Tennessee.

Petitioner’s indictment included the proper section from TennesseeCodeAnnotated and this,

in turn, provided sufficient notice to Petitioner of the charges against him. In addition, we hold

under Hill and Ruff that the mens rea of “intentionally” can be logically 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 deliberation 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 convicted Petitioner “based upon a duty to protect society,” instead

of upon the law and instructions given them. Petitioner’s second argument claims that instructions

for “duress” and “necessity” should have been given the jury. These two issues are restatements of

allegations formerly addressed in this appeal but couched in terms of ineffective assistance 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 defense

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 presented for review shall be

predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties or

counsel, or other action committed or occurring during the trial of the

case, or other ground upon which a new trial is sought, unless the
-22-

same was specifically stated in a motion for new trial; otherwise such

issues will be treated as waived. 

Tenn. R. App. P. 3(e). Under the Post-Conviction Procedure Act, waiver occurs where “the

petitioner personally or through an attorney failed to present [the ground] for determination in any

proceeding before a court of competent jurisdiction 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 not raised has been

waived is rebuttable, however. Tenn. Code Ann. § 40-30-206(g). In order to rebut the presumption,

the petition must contain "allegations of fact supporting each claim for relief set forth in the petition

and allegations of fact explaining why each ground was not previously presented in any earlier

proceeding." Tenn. Code Ann. § 40-30-204(e) (1997).

The two issues discussed above are predicated on error committed during trial and were not

raised in Petitioner’s motion for new trial. These issues were perfectly suited for adjudication in

the trial court pursuant to a motion for new trial or, if inclusion 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 supplying this Court with any facts which explain why these claims were

not previously 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 established legal procedure and our goals of finality in adjudication.

Accordingly, Petitioner is not entitled 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 AFFIRMED.

____________________________________

THOMAS T. WOODALL, JUDGE