### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 13, 200 5

TIMOT HY HAR RIS v. STA TE OF TEN NES SEE

Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. P -13185 John P. Colt on, Jr., Judge

No. W2004-02891-C CA-R 3-P C - F iled Dece m ber 16, 2005

The pe titioner, TimothyHar ris, appea ls the denial of his petition for post-c onviction rel ief. The single issue prese nted for r eview is whe ther the pe titione r r ece ived the ef

fec tive assistance of counse l at trial. The judg ment is affirme d.

Tenn. R. App . P . 3; Judgme nt of th e Trial Court is Aff irm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which D AVI D G. H AYES and T H O M A S T. W O O D A LL , J J ., joined.
Dewun R. Settle, Memphis, Tenne ssee ( at trial); and T imothyD. Har ris, Tiptonvill e, Te nnessee (on appea l), pro se.

Paul G. Summers, A ttorney Gene ral & Reporter ; Renee W. Turne r, Assistant Attorney Gene ral; and Steve Crossnoe, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I n 1993, the petitioner was convicted of felony murder, espec ially ag g ravated robbe ry , and ag g ravated burg lary . The jury retur n ed a s entenc e of de ath for the felony murder. T he trial c ourt imp os e d c on se c uti ve se nte nc e s o f t we nty -f ive y e ars fo r the e sp e c ia lly a g g ra vate d ro bb e ry a ndsix y ear s for the ag g ravated burg lary . On direc t appea l, this court affirmed the convic tion but modi fied the se nte nc e of

de a th f or fe lon y mur de r t o a

te rm of lif e imp ri so nme nt. State v. Ti mothy D. Ha rris, No

. 02 C01 -9 21 1- CR- 00 25 8 (T e nn

. Cr im. Ap p. , a t Jac ks on , Ap r. 13
, 19 94 ). Ou r su prem e co urt, howeve r, re verse d this court' s modification of t he death sentenc e and rema nded the issue to the trial

c ou rt fo r r e se nte nc ing . St a te v. Ha rris, 91 9 S. W.2 d 3 23 (T e nn . 1 99 6)

. Th e pe tit ion e r u lti ma te ly

rec eived a

life sentenc e for

the fe lony

murder.

The facts are set out in detail i n the opi nion of t his court on dire ct appe al. I n summary , the victim picked up his g irlfriend on the evening of May 29, 1990, and drove her back to his re sidence

. As she wa ited in the house, the victim ca rried a fan and some clothes to his car . Five me n-2-

app ro a ched th e vi c tim , o ne of wh om r e mov e d h is s hirt a nddis play e d a " lon g g un ." Th e vic tim attempted to esc ape into his vehicle but w as shot multipl e times. The victim' s g irlfriend, w ho saw the shooting f

rom inside th e residence , hid in the bathroom of a ba ck bedr oom. She then hear d approximately

eig ht more shots from multipl e g uns. Whil e hiding, she observe d three of the men enter the bac k bedroom of the house and look throug h draw ers. An officer describe d the house a s ha vin g be e n r a ns a c ke d. A few day s late r, the vic tim ' s g ir lf ri e ndide nti fi e d th e pe tit ion e r f ro m a p h o t o gra p h i c a rr ayas o n e o f t h e m en at t h e s ce n e o f t h e s h o o t i n g.
On September

20, 1996, the petitioner fi l ed a pro se petition for post-conviction re lief allegin g, am o n g other thing s, that he wa s denied the e ffe ctive assistanc e of c ounsel at trial. On October 11, 1999, the petitioner a mended the pe tition to alleg e that his trial counsel was ineffe ctive for ha ving f

ailed to (1 ) inform the pe titioner of the law c oncerning the first deg ree felony murder char g e, (2) properly

advise the pe titioner not to acce pt the state' s plea, (3) prepa re a defe nse, (4)

re qu e st a c on tin ua nc e of the tr ia l in or de r t o p re pa re a de fe ns e , a nd(5 ) a de qu a te ly pr e pa re fo r t ri a l. He a lso a lle g e d th a t hi s c ou ns e l f a ile d to pr ov ide e ff

e c tiv e a ssi stanc e on dir e c t app e a l.

At the evidentiary

hearing, the petitioner, who wa s repr esente d at t ri al an d o n appea l by Attorne y s Harry S c ru g g s a nd Ste ph e n P. Spr a c he r, te sti fi e d th a t he wa s o ri g ina lly c ha rg e d w ith fe l o n y m u rd er , es p ec i al l y

aggr av at ed ro b b er y , an d aggravated bur g lary . He c omplained t h at al t h o u gh Attorne y Sc ru g g s p re pared and fi led pr e tr ia l mo tio ns , h e faile d to app e ar f or he ari ng s o n th os e motions. He alleg ed that Attorne y Scrug g s was actua lly held in contempt of court for having missed a pre -trial motion hearing. T he petitioner c ontended that his counse l did not inform him of the law involved in the case , never discussed a tria l strateg y , and neve r explained to him that he was fa cing the de a th p e na lty

. He a sse rt e d that Attorne y Sc ru g g s a dv ise d h im a g a ins t a c c e pti ng a ple a ba rg a in that w ou ld h a ve re su lte d ina se nte nc e of

thi rt y -f ive y e ars a nd that his att orne y s othe rw ise faile d to investigate the ca se, fa iled to interview the state ' s main witness, and fa iled to investigate or pre sent mitigating fac tors that might have preve nted t he petiti oner from rec eiving the death sentence . The petitioner also criticized his attorney s for failing to obje ct or call witnesses during the g uilt phase of the tr ia l, c on te nd ing that " [w]e did n' t pu t on a def e ns e ." He c omp la ine d th a t on ly on e de fe ns e wi tne ss w a s c a lle d to tes tif y du ri ng the se nte nc ing ph a se of the tr ia l, expl a ini ng that he him se lf did not provide the na mes of any witnesses who could have testified on his behalf be cause of his total

re lia nc e on his a tto rn e y s. Th e pe tit ion e r al so c on te nd e d th a t hi s a tto rn e y s f a ile d to re qu e st o r s ub mit jury instructions reg arding fac ilitation of felony murder a s a lesser -included of fense of fe lony murder.
Attorney Scrug g s died befor e the e videntiary hearing on the petition. On the second and fina l day of the he aring , which wa s hel d six months after the petitioner testified, Attorne y Sprache r testified that in 1991, afte r Attorney Scrug g s asked f

or his assistance in the case , the trial court

app oin te d h im a s c o- c ou ns e l. He re c a lle d that the po ssi bil ity of the de a th s e nte nc e wa s " c on sta ntl y on our minds" a nd that the petitioner wa s well awa re of that befor e their first meeting . He e x plained that the thirty -f

i v e y ear plea ba rg ain offe red to the pe titioner was conting ent upon ea ch of his code fe nd a nts a c c e pti ng the ple a , th a t so me of the oth e rs c ho se no t to acc e pt t he of fe r, a ndthat, i n conseque nce, the offe r wa s unavailable to the petitioner. Attorney Sprache r re futed the a lleg ation-3-

that he and his c o-counse l had fa iled to prepa re a defe nse and pointed out t hat they had filed extensive pre-tria l motions in the case . He de scribed t h e defe nse theory as fa ctually -base d: the pe tit ion e r c on te nd e d th a t he wa s not part of a ny c on sp ir a c y that r e su lte d inthe vic tim ' s d e a th b e c aus e he ha d n e ve r i ntended fo r the sh oo tin g to o c c ur a ndha d a

ba nd on e d th e e nti re e nte rp ri se wh e n h is co-de fendants beg an shooting at the victim.
Attorney Sprache r ac knowledg ed that bec ause of a last-minute plea

barg ain re ache d by

one of the c o-def

endants, he and his co-c ounsel wer e "sur prised" when the case ag ainst the petitioner wa s elevated to first on the docket for trial. Attorney Sprache r nevertheless c ontended that he and his cocounsel we re r eady

beca use the trial court had instructed them to be prepa red in c ase time pe rmitted the m to g o for wa

rd on that dat e

. He te sti fi e d tha t he did no t know the nu mbe r of tim e s h e me t w ith the pe tit ion e r prior to tr ia l bu t in sis te d th a t he me t w ith him e no ug h s o th a t he " wa s c omf orta ble wi th g oing to tria l at least under standing that [t he petiti oner] knew .

. . what our pla n was a nd wher e we
wer e g oing w ith it, and that we had a n idea what eac h person wa s g oing to say ." T rial counse l stated that be c aus e the pe tit ion e r h a d d e c ide d n ot t o te sti fy a ndbe c a us e the re we re no wi tne sse s th a t w ou ld support the def

ense the ory , they

had to re ly

upon the cr oss-examination of the state' s witnesses as the means of prese nting the defe nse. He testified that the petit ioner did not provide the names of any witnesses that could ha ve testified on his behalf

. He contende d that he pre pare d a portion of the brief for the a ppeal a nd was succ essful to the extent that this court overturne d the sentenc e of de ath and imposed a sentenc e of life imprisonment.

On cr oss-examination, Attorney Sprache r conf

irmed that no investig ator or miti gating specia list worked on the ca se bec ause the trial court ha d denied the r equest of c o-def endants for

such assistance . He e x plained that counsel for eac h of the de fendants charg ed in the murde r adopte d the motions m ade by

the attorne y s for the othe r def endants. Attorne y

Sprache r admit ted t hat he did not int e rv ie w any

of the state ' s w itn e sse s b ut s ta te d th a t Atto rn e y Sc ru g g s may ha ve do ne so prior

to h is appointment as co- counsel. He acknow led g ed that he did not re call what jury instructions were g ive n o r w he the r h e a ndhis c o- c ou ns e l su bmi tte d a ny pr op os e d in str

uc tio ns

.

I n 2004, some eig ht y ear s after the filing of the orig inal petition, the post-c onviction court enter ed an or der de ny ing r elief. The court spec ifically acc redited A ttorney

Sprache r' s testimonythat the petitioner and his counsel had discussed the death pe nalty on more than one occa sion, including a discussion on the morning of the trial. The post-conviction court al s o fo und that the thirty -five y ear plea of fer was c ontinge nt upon all of the de fe n d an t s charg ed in the murde r ente ring pleas of g uilt, som ething that did not oc cur. The court de termined that whe n the offe r wa s not acc epted by

a ll d e fe nd a nts , th e st ate wi thdre w i ts p ro po sa l. A s a re su lt o f the de c isi on by

the pe tit ion e r n ot t o testify at his trial and ther e b ei ng no other witnesse s who testified either at trial or the e videntiary h e ar i n g w i t h f

a v o r ab l e t e s t i m o n y , t h e p o s t

- c o n v i c t i o n c o u r tc o n c l u d e d t h a tt h e d e f e n s e a t t o r n e ys could not have be en d efic ient in their perf ormanc e by

their inability

to produce support for the pe tit ion e r' s c la im that he ha d a ba nd on e d t he ent erprise . T he c ou rt ru le d th a t th e a tto rn e y s d id

e ve rythi ng po ssi bleto s up po rt the the ory , in c lud ing makin g the argum ent to the jury . T he po stconviction court further conclude d that beca use trial counse l were prepa red, the y could not be ine ff e c tiv e fo r fa ili ng to as k for a c on tin ua nc e

. Al tho ug h the c ou rt fo un d th a t A tto rn e y

Sc ru g g s w a s,-4-

in fac t, held i n contempt for failing to appea r for a pre-trial mot ion hearing, it ruled that the petitioner was not pre

judiced by

the action. Finally
, the post-conviction court held that the petitioner wa s not prejudice d by

counsel' s failure to include authority to suppo rt t he issues ra ised on direc t appea l b e c au s e t h i s c o u rtd i d n o ttr e a tt h e i s s u e s a s w a i v e d a n d r e v e r s e d t h e d e a t h s e n t e n c e

. In s u m m ar y, the p o s t -c onviction court conc luded that the petitioner w as not denied the eff ective a ssistance of

c ou ns e l.

I n this appeal, the pe titioner asserts that his counse l was ineff ective by fa i l i n g t o (1) adequately

prepa re f or trial, (2) investigate possible defe nses, (3) interview potential witnesses, (4) eff ectively prese nt proof at tria l, (5) mee t with the petitioner prior to trial, (6) r equest a jury instruction on the lesser inc luded offe nse, and ( 7) re quest a jury instruction on the natura l and probable conseque nces r

ule.

Parenthe tically , the petitioner ha s fa i led to include appr opriate r efe renc es to the re cord. "I ssues which a

re not supporte d by

. . . appropriate ref ere nces to the rec ord will be treated as wa ived in this c ou rt ." Te nn . Ct . Crim. Ap p. R. 1 0( b) ; se e a lso Te nn . R. Ap p. P. 2 7( a )( 7) ; State v. Hammo ns , 737 S.W .2d 5 4 9
, 5 5 2 (T enn. Crim. App. 1987). More importantly , howeve r, the pe titioner is not entitled to relief upon the merits of the issue.

Un de r o ur statut ory la w, the pe tit ion e r be ars the bu rd e n of p ro vin g the a lle g a tio ns in h is p os tconviction petition by

clea r and c onvincing evidenc e. See Te nn. Code Ann. § 40-30- 110(f) (2003). Evidence is clear

and convinc ing w hen there i s no serious or substantial doubt about t he ac cura cy of the c onclusions drawn f rom the evide nce. Hicks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998). On appeal, the finding s of fact m ade by the pos t-conviction court are conclusive and will not be disturbed unless the e vidence contained in the r ecor d prepondera tes ag ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the e vid e nc e pr e po nd e rate d a g a ins t th os e fi nd ing s. Cle nn y v. State , 5 76 S.W. 2d 12 , 1 4 ( Te nn . Crim. App. 1978). The credibility of t he witnesses and the we ight a nd value to be a ffor ded their te stimony

are questions to be resolved by the post-conviction court. Bat es v

. S t ate, 973 S.W .2d 615, 631 (Tenn. Crim. App. 1997)

. When a petitioner see ks post-conviction relief on the ba s i s of ineff

ective a ssistance of

co u n s el
, h e m u s tfi rs tes t ab l i s h t h at t h e se rv i ce s re n d er ed o r th e a d v i ce gi v en wa s b el o w " t h e r an ge of compe tence demande d of attorne y s in criminal case s." B axter v

. R o se, 523 S.W.2d 930, 936 (Tenn. 1975) . Second, he must show that the de fi ci en cies " actua lly had an a dverse eff

ect on the de fe ns e ." Stric klandv. Was hin g ton , 4 66 U. S. 6 68 , 693 (1 98 4)

. Th e e rr or mus t be so se ri ou s a s to rende r an unr eliable r esult. I d. at 687. I t is not necessary , howeve r, that abse nt the defic iency , the trial would h av e re s ulted in an ac quittal. I d. at 695. Should the petitioner fail to establish either fa c tor , h e is n ot e nti tle d to re lie f. Ou r s up re me c ou rt de sc ri be d th e stand ardof re vie w a s f

oll ow s:

Be cause a petitioner must establish both prong s of the test, a failure to prove either de ficienc y

or pre judice provide s a suffic ient basis to deny relief on the-5-

ineffe ctive assistanc e cla im. I ndeed, a court ne ed not addre ss the components in any particula r orde r or e ven addr ess both if the defendant make s an insufficie nt showing of on e c omp on e nt.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffe ctive assist ance of counsel, the petitioner is not entitled to the benef it of hindsight, may

not second-g uess a r easona bly based tria l strateg y , and cannot criticize a sound, but

unsucce ssful, tactica l decision made during the course of the proc eeding s. Adkins v. State, 911 S.W. 2d 33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta c tic a l de c isi on s o f c ou ns e l, howeve r, applies only

if the choic es ar e made after ad eq u at e p reparation for the ca se. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.
Cla ims of ine ff

e c tiv e a ssi sta nc e of c ou ns e l are re g ard e d a s mixe d qu e sti on s of la w a ndfa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). When revie wing the a p p l i ca t ion of law to the post-c onviction court' s fac tual finding s, our revie w is de novo, and the post-conviction court' s conclusions of law a re g iven no pre sumption of

corr ectne ss. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. Eng land, 19 S.W .3d 762, 766 (Tenn. 2000)

.
I.

Th e pe tit ion e r m ake s se ve ra l c la ims o f i n e f f e c tiv e a ssi stanc e of

c ou ns e l th a t may

be g e ne ra lly

c la ssi fi e d a s a

c la im o f f

a ilu re by tr ia l c ou ns e l to a de qu a te ly pr e pa re fo r t ri a l. In th is a

pp e a l, howeve r, the pe titioner makes a strong a rg ument of def

iciency in attorney

perf ormanc e without establishing any

indication of pre

judice in re sult. For example, as o n e b as is for his claim of ina de qu a te tr ia l pr e pa

ratio n, the pe tit ion er as se rt s th a t hi s tria l c ou ns e l f a ile d to a de qu a te ly investigate his case . He testified that his attorney s did not int ervie w the state' s main witness and

a l l u d e d t o a n au d i o t ap e , ap p ar e n t l y a t ap e r e c o r d i n g o f a n i n t e r v i e w o f t h e w i t n e s s , t h a th i s a t t o r n e ys discovere d only

af ter the tria l. The petitioner, howe ver, f ailed to introduce that tape a s evidenc e du ri ng the he ari ng , f

a ile d to e xpla in h ow the e vid e nc e ma y ha ve be e n us e d in his tr ia l, a nd faile d to sug g est how he w as pre

judiced by

the fa ilure to interview the witness or introduce the tape.
The pe titioner also complains that an investi g ator was never assig ned to his case . Attorney Sprache r, who testified that counsel for th e co -d efe ndants attempted to have the court appoint inv e sti g a tor s to the c a se , e xpla ine d th a t e a c h of the a tto rn e y s r e pr e se nti ng of de fe nd a nts c ha

rg e d in the murder

adopted the motions of the other s, includi ng the re quest for f unds to employ

an investigator. The tria l court denied the motion. Notwithstanding any defic iency

in performance by his trial counsel' s failure to insist on a hearing or offe r proof of need for expert assistance in this area, the petitioner failed during t he evidentiary hearing to addre ss how he might have benefitted by an investigator, as is requir ed for any g rant of r elief.-6-

The pe titioner also claims that his counsel i nadequately prepa red for hi s sentencing hearing by failing to interview witn es s es or ca ll any witness other than one of his aunts. The pe titioner, howeve r, fa iled to produce any witness at the evide ntiary hearing w ho might have provided he lpful testimonyat trial. It is incumbent upon the pet i t i o n er to produce witnesses at the post-c onviction

ev i d en t i ar y

h ea ri n g i n o rd ert o es t ab l i s h ei t h erd ef i ci en cyi n p er fo rm an ce o r p re j u d i ce i n re s u l t

. Bl ack v. State, 794 S.W .2d 752, 757-58 (Tenn. Crim. App. 1990). This st andar d prec ludes speculation as to the materia lityof the testimony or the c redibility

of the missing w itnesses. I d. at 758.
The pe ti ti o n e r a ls o c o n te n d s th a t h is la w y e r s w e r e in e f f e c ti v e b y f

a il in g to s e e k a ps y c ho log ic a l e va luatio n. An e xpe r t ' s t e s ti m o n y

r e g a r d i n g a d e f e n d an t ' s ps y c ho log ic a l c on dit ionwi ll be a dmi ssi ble on ly

if it t e nd s to pr ov e or

dis pr ov e that th e de fe nd a nt d id n ot h a ve the c apa c ity to fo rm the re qu ir e d me nta l state

. Se e Sta te v. Ha ll, 95 8 S. W.2 d 6 79 , 6 89 -9 0 ( Te nn . 1 99 7) . A t tria l, the petitioner made no claim t hat he lacke d the ca pacity to form the re quired menta l state. Further, the petitioner made no claim of diminished capa city at his evidentiary

hearing and did not offe r any testimony , expert or ot herw ise, to that eff ect. He has failed, the ref ore, to de monstrate that he w as prejudice d by

his trial counsel' s failure to reque st a psy cholog ical eva luation.

T h e p et i t i o n er 's n ex tco m p l ai n ti s t h at At t o rn ey S cr u ggs fa i l ed t o ap p ea r fo r p re -t ri al h ea ri n gs
a n d " r e n d e r e d h i m [ s e l f

] c o m p l e t e l y

u n a v a i l ab l e d u r i n g c r i t i c a l s t a g e s o f p r e

- tr i a l i n v e s t i g a t i o n

. " In support of the c laim, he testified that Attorn ey S cr ug g s was on one oc casion he ld in contempt for his failure to appea

r at a pre-trial hearing

. Attorney Sprache r, however, testified that he met with the petitioner at the ja il between O ctober 1991 and Mar ch 1992. The post-conviction court acc redited that testimonyand conc luded that Attorney Scrug g s' s contemptuous conduct by failing to a ppear at a pre -trial hea

ring had no adve rse e ffe ct upon the petitioner or the t ri al o f h i s case . Although the evidenc e off

ere d at the evide ntiary

hearing doe s not preponder ate ag ainst that finding , this court does not condone the c onduct of trial c ounsel in this reg ard. A n attorney ' s willful failure to appe ar f or a pre- trial hea

ring in a ca

pital case is hardly

an endor sement for

the ef fec tiveness of his performance

.

F ina lly , th e pe tition e r al so a sse rt s tha t cou ns e l w a s in e ff e c tiv e by faili ng to c ite a uth ority

in support of the a

rg uments on appea l. That counsel filed an appellate brief in a capital c ase w ithout leg al citations or signific ant rese arc h is appare ntly not in disput e. Among the other a lleg ations of defic iency

in performance , that is a troublesome fa ct. The state, h o we v er , established at the evidentiary hearing that despite the absenc e of supporting case law, this court fully addre ssed all of the petitioner' s issues on direc t appea l. Moreove r, t his court overturned the pe titioner' s sentence of death. The inesca

pable implication is that the petitioner wa s gra n t ed re lief despite a ny omissions on the part of his attorney s. Ag ain, the petitioner has failed to de monstrate how he wa s prejudice d by the sh ortc omi ng s o f h is c ou ns e l onapp e a l.

II.
The pe titioner also asserts that his trial counsel was ineffe ctive for failing to object to t he jury i n s t r u ct i o n s , wh i ch d i d n o t i n cl u d e fa ci l i t at i o n o f fe l o n y m u rd er as a le s s er i n cl u d ed o ff en s e

. InI n St at e v

. B u r n s , 6 S. W

. 3d 453 ( T en n

. 1999), our s u pr eme cou r t re v i s ed t h e s t an dar ds f or t h e det er mi n at i on 1
of l es s er i n cl u ded of

fen s es

. T h i s cou r t , h owe v er , h as pr ev i ou s l y de cl i n ed t o a ppl y B u r n s r et r oac t i v el y t o pos t

- con v i ct i on

ca s es w h er e t he di r ec t a ppea l w as c on cl u ded pr i or t o B u r n s

. Se e, e

. g

. , J ame s Ri ch ar d B i s h op v

. St at e, N o. E 2 0 0 0 -0 1 7 2 5 -C C A -R 3 -P C (T e n n . C rim . A p p ., at K n o x v ill e , Ju ly 1 3 , 2 0 0 1 ), p e rm . ap p . d e n ie d , (T e n n . 1 9 9 9 ).

-7- addition, he asserts that his counsel on direc t a ppeal was ineffe ctive by failing to pr esent the issue

a s a g ro un d f or re lie f o n d ir e c t app e a l.

I n order to preva il on his claim t hat hi s counsel was ineffe ctive for failing to cite as e rror

the trial court' s failure to provide an instruc tion on the lesser include d offe nse of facilitation of fe lony murder, the petitioner must not only establish that his counsel was defic ient by failing to present the issue but he must also de monstrate that he was prejudice d by the omission. To establish that he wa s prejudice d, the petitioner must show that there is a rea sonable probability that the re sult of his direct appea l w o uld have be en diffe rent ha d counsel pre sented this issue for r eview. In other wor ds, he must establish that thi s court would likely have r ever sed his conviction in the o ri gi n al ap peal a nd

re ma nd e d f

or a ne w t ri a l.
The initial inquiry

is whether the trial court err ed by failing to instruc t the jury on fac ilitation of fe lony murder a s a lesser

included offe nse. Whether a g iven offe nse should be submitted to the jury as a le sser included offe nse i s a mix ed question of law and fa ct. State v. Rush, 50 S.W .3d 424, 427 (Tenn. 2001) (citing State v. Smil ey , 38 S.W .3d 521 (Tenn. 2001)). The standard of revie w for mixe d q ue sti on s o f l a w andfa c t is de no vo wi th n o p re su mpt ion of c or re c tne ss. I d. ; se e a lso State

v. B urns , 6 S.W. 3d 45 3, 46 1 ( Te nn . 1 99 9) . B e c a us e the of fe ns e oc c ur

re d in19 90 , th is c ou rt

mus t analy ze the issue under the law as it existed at that time. 1

I n 1993, the trial court was re quired to instruct on t he lesser included off

enses whe n "the re [were] any

fac ts that [ wer e] susceptible of inferring g uilt on any lesser inc luded offe nse or of fense s." State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981) (c itations omi tted); see a lso Tenn. Code Ann. § 40-18- 110(a) (1990) ( "It is the dutyof all judg es cha rg ing ju ri es i n . . . criminal prosec utions for any

felony wher ein two (2) or more g rade s or classes of offe nse may be included in the indictment, to charg e the jury as t o all of t he law of each offense included i n the indictment . . . .") . The failure to do so was said to deny "a defe ndant his c onstitut ional rig ht of trial by a jury ." Wright, 618 S.W.2d at 315. The trial court wa s not, however , requ i re d t o i nstruct on the lesser included offe nses when the rec ord was devoid of evidenc e to support an infere nce of g ui l t o f t he lesser of fense

. State v. Stephenson, 878 S.W .2d 530, 550 (Tenn. 1994); State v. Boy d, 797 S.W .2d 589, 593 (Tenn. 1990), cert. de nied, 498 U.S. 1074 (1991); State v. Dulsworth, 781 S.W.2d 277, 287 (Tenn. Crim. App. 1989)

.

I n Wrig ht v . St a te , 5 49 S.W. 2d68 2 ( Te nn . 1 97 7) , o ur su pr e me c ou rt

c on fi rm e d the te st t o determine whether

an off ense is lesser

and included in the g reater off ense:-8-

"T he true test of which is a les s er an d whi ch is a g reater c rime is whether the elements of the former

are completely contained within the latter, so that to prove the g reater the State must first prove the eleme nts of the lesser ."

I d. at 685-86 (quoting J ohnson v. State, 397 S.W .2d 170, 174 (1965))

.
At the time of the off

ense, f acilitation of a f

elony was a relatively new c rime, having been

cre ated by

the Tenne ssee Criminal Sentencing Reform Ac t o f 1 9 89, which bec ame e ffe ctive on November

1, 1989. See State v. Gr eg Patterson, No. 03C 0 1-9106-CR-180 (Te nn. Crim. App., at Kn oxvil le , M a y

19 , 1 99 2) . T he Se nte nc ing Co mm is si on Com me nts to the fa c ili ta tio n s ta tut e p ro v i d ed that the provision recog nized "a le sser de g ree of criminal responsibilit y " tha n that of an aider and abe ttor:

The sec tion states a theory of vica rious responsibility beca

use it applies to a per son who fa cil i t at es criminal conduc t of another by knowing ly

furnishing substantial

a ssi sta nc e to the pe rp e tr a tor of a fe lon y , bu t wh o la c ks the int e nt t o p ro mot e or a ssi st in, or bene fit from, the fe lony ' s commission.
A defendant charg ed as a

party may be found g uiltyof fa cilitation as a lesser included off

ense if t he def

endant' s deg ree of complicity is insufficient to war

rant conviction as a

part y

. T he lesser

punishment is appropriate be cause the offe nder, though f acilitating the offe nse, lacke d the intent to promote, assist or benef it f rom the offe nse.

Te nn . Co de An n. § 3 9- 11 -4 03 (1 99 0 Sup p. ), Se nte nc ing Com mis sio n Co mme nts . T his c ou rt he ld that an instruction on facilitation of a felony as a lesser included offe nse wa s not warr anted in eve ry
case :

F a c ili ta tio n o f a

fe lon y is n ot a le sse r i nc lud e d o ff

e ns e a s a ma tte r o f l a w. I t is
, howeve r, a lesser offense if the evidenc e fairly shows the conduc t of an a ccuse d does not r e a c h th e le v e l o f a n a c ti v e p ar ti c ip a n t w ith c u lp ab le in te n t in th e cr ime, but

s h o w s h e d id s o me a c ts w h ic h w o u ld a id th e p r in c ip a l o f f e n d e r in c arry ing out the crime c ommitt ed.

State v. J ohnny

Davis Carr
, No

. 0 3 C 0 1 -9 111-CR-00354, slip op. at 2 (Tenn. Crim. App., at Knoxvi lle, Apr. 21, 1992).

Her e, the pe titioner contends that there was proof that he did not intend for the victim to be kil le d a nd ha d, in f

a c t, a ba nd on e d th e ro bb e ry

on c e the sh oo tin g be g a n. He arg ue s th a t th e jury c ou ld ha ve , th e re fo re , fo un d him g uil ty of no thi ng mor e than f a c ili ta tio n o f f

e lon y mur de r. No wi tne sse s, howeve r, appe are d on his behalf at either the t rial or the evidentiary hearing. H e did not testify at tr ia l. T he state pr od uc e d e vid e nc e that th e pe tit ion e r w a s th e " ma ste rm ind " be hin d th e ro bb e ry plo t. There was proof that the petit ioner had selec ted t he victim and provide d information as to whe re he-9-

could be f ound. Although the petitioner hi mself was not arme d, the evidence established that he wa s
awa re that his co-d ef

en d an t s wer e ca

rrying g uns. Thus, there w as over whelming proof that the petitioner wa s "an active pa rticipant with culp able intent in t he crime." See Carr, slip op. at 2. Al tho ug h th e pe tit ion e r n ow c la ims that he didno t in te ndto p art ic ipate in the mur de r of the vic tim
, ag ain, there was no such pr oof pre sented at trial. As the post-c onviction court obser ved, the primary defe nse theory

was one of abandonment of crim i nal intent afte r the shooting beg an. The jury resolved the issue of abandonment in favor of the state. Intent to murder is not essential to fe lony murder. F arme r v. State, 296 S.W.2d 879, 883 (Tenn. 1956); B illyGrooms v. State, No. 03-C-01- 9103-CR-00092, slip op. at 3-4 (Tenn. Crim. App., at Knox ville, Nov. 6, 1991). Any err or by the omission i n the instruction, there fore , in the context of the entire r ecor d, coul d b e cl assified a s harmless e rror . Under

th es e ci rcumstances, it is our view that the pe titioner would not have be en entitled to relief on this issue had it been pr esente d on direc t appea l. I n conseque nce, the petitioner has failed to establish that he was prejudice d by trial counsel' s failure to present the issue a s a g round fo r r e lie f o n a

pp e a l.

III

.

I n a re lated issue, the pe titioner contends that his trial attorne y s wer e ineffe ctive for f ailing to o bje c t to the jury

c ha rg e , w hic h di d no t con tain a n in str uc tio n o n th e natur a l a ndpr ob able

c on se qu e nc e s rule . In a dd iti on , h e ass ert s th a t hi s a pp e llate c ou ns e l w a s in e ff e c tiv e by faili ng to pr e se rv e the iss ue fo r a

pp e a l.

"T he natur al and pr obable conseque nces rule arose as a common law compone nt of criminal responsibilityand extends criminal liabilityto the crime intende d by a def endant, a nd co l l ateral crimes c ommitt ed by

a co- defe ndant, that wer e the natural and pr obable conseque nces of the tar g et crime." State v. Richmond, 90 S.W .3d 648, 654 (Tenn. 2002) (citing State v. Carson, 950 S.W.2d 9 5 1 (T en n

. 1 9 9 7 ))

. T h e a p p l i cab l e d ef i n i t i o n o f c ri m i n al re s p o n s i b i l i t y p ro v i d es t h e f

o l l o wi n g:
A per son is criminally

responsible for

an off ense c ommit t ed bythe conduc t of another if: (2 ) A c tin g wi th int e nt t o p ro mot e or a ssi st the c omm iss ion of theof fe ns e , o r t o benef it in the pr ocee ds or results of the offe nse, the pe rson solicits, directs, aids, or attempts to aid another pe rson to commit the offense

. . . .

T en n

. C o d e A n n

. § 3 9 -1 1 -4 0 2 (2 ) ( 1 9 9 0 ). I n S t at e v

. Ho wa rd
, 3 0 S

. W

. 3 d 2 7 1 (T en n

. 2 0 0 0 ), o u r h i gh

c ou rt de ve lop e d a te st to be app lie d wh e n c ri min a l li abil ity is b a se d u po n th e natur a l a ndpr ob able

c on se qu e nc e s rul e

. Ou r sup re me c ou rt he ld that th e state wa s r e qu ir e d to pr ov e be y on d a re a so na ble doubt "( 1) the e lement s o f t h e cr i m e or c rimes that ac companied thetarg et crime; (2) that the defe ndant was c rimin all y

r e s p o nsible pursuant to Tenne ssee Code A nnotated sec tion 39-11-402; and (3) that t h e o t h er crimes that we re c ommitt ed we re the natura l and proba ble conse quence s of the targ e t c ri me ." Ho wa

rd , 3 0 S. W.3 d at 27 6. Whe re the state se e ks to p ro ve that th e c ri me c ha rg e d is the natura l and probable conseque nce of the targ et crime, proper jury instructions should include a ref ere nce to the natural and pr obable c onsequenc es rule. Richmond, 90 S.W.3d at 657.-10-

I nitially , the petiti o n er has fa iled to demonstrate that he was c onvicted under a theory of criminal re sponsibili ty . I t was the state' s theory at trial that he was the "ma stermind." See State v. J ason D. Pillow, No. M2002-01864-CC A- R 3 -C D (Te nn. Crim. App., at Nashville, F ebrua ry 27, 2004) (holding that an instruction on the natur al and pr obable c onsequenc es rule is only nece ssary when a defe ndant is char g ed under a theory of criminal responsibilit y (citing Richmond, 90 S.W .3d at 654)). Mor eover , the fe lony murder statute does not requir e t h at a homicide c ommitt ed during the cour se of one of the enumer ated f elonies be f

orsee able. See Tenn. Code Ann. § 39- 13-202(a )(2) (1 99 0) . " Whe n o ne e nte rs int o a sc he me wi th an oth e r to co mmi t one of the fe lon ie s e nu me rate d in the fe lon y mur de r s ta tut e s, a nd de a th en su e s, bo th de fe nd a nts are re sp on sib le fo r thede a th r e g ard le ss of who a ctually

committed the murder and whether the killing wa s specific ally contemplated by

the other." State v. Hinton, 42 S.W .3d 113, 119 (Tenn. Crim. App. 2000) (citing State v. Br own, 756 S.W .2d 700, 704 (Tenn. Crim. App. 1988) . Thus, the def endant he re w as statutorily responsible for any homicide committed during the course of the robbery and burgla ry , whether

or not the homicide was for seea

ble, and a natura l and probable conseque nces instruction was not require d. See State v. Win t er s , 137 S.W .3d 641, 659 (Tenn. Crim. App. 2003) . Under these c ircumstance s, this court

wo uld n ot hav e re ve rs e d th e c on vic tio n b a se d u po n th e omi ssi on of the natur a l a ndpr ob able conseque nces instruc tion. Thus, the petitioner has failed to establish that he was pre judiced by

c ou ns e l' s f

a ilu re to i nc lud e the iss ue on app e a l.

Acc ording ly , the judg ments of the post-convic tion court are aff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE