# FILED
January 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JUNE 1997 SES SION

GREGORY MORGAN, ) ) Appellant, ) No. 03C01-9611-CR-00404

) ) Bradley County v. ) ) Honorable Mayo L. Mashbur n, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Ashley L. O wnby Charles W. Burson 180 N. Ocoee Street Attorney General of Tennessee P.O. Box 176 and Cleveland, TN 37364-0176 Marvin E. Clements, Jr. Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Jerry N. Estes District Attorney General 203 E. Madison Avenue Athens, TN 37303-0647

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Gregory Morgan, appeals as of rig ht from the Bradley County Criminal Court’s order denying him post-conviction relief from his 1990 first degree felony murder conv iction and resulting l ife sentence. The judgment of conviction was affirmed on appeal. State v. Morgan , 825 S.W.2d 113 (Tenn . Crim. App. 1991). The petitioner prese nts the following iss ues for our review:

I. Whether the petitioner’s due p rocess rights were v iolated in that: (A) The trial court failed to give a jury instruction regarding the effec t of the petitioner’s voluntary intoxication; (B) The trial cour t improperly instructed the jury that it should stop deliberations once it found the petitioner

guilty of felony murder, thus restr icting consideration o f self-defense or provocation evidence; (C) The trial court improperl y instructed the jury so as to direct a finding on an essential element of first degree murder; and (D) The trial court improperly instructed the jury on reasonable doubt by its us e of the ph rases “moral certainty” and “let the mind rest.” II

. Whether the petitioner received the ineffective assistance of counsel in that: (A) His trial attorney

s refus ed to allow him to testify; (B) His trial a ttorneys failed to secure the testimony of a material defense witness; (C) His trial attorney

s failed to make a proper record for review of the claim that jurors should have been stricken for cause ; and (D) His trial attorney

s failed to challenge certain jury instructions. We conclude that the post-conviction cour t did not err and properly denied the petitioner relief.3 CON VIC TIN G TR IAL The petitioner was orig inally charged w ith felony murder, premeditated and deliberate murder, armed ro bbery and grand larceny. The case dealt with ev ents that occurred at an Interstate 75 rest area. The details of the evidence are provided in this court’s opinion on the direct appeal. See Morgan , 825 S.W.2d at 115-16. Essentially, the state’ s proof showed that the petiti oner and Clifton Swift, trav eling from Florida, stopped at the rest area, ostensibly to st

eal a car. The petitioner met the victim, and the two l eft the rest area twice i n the victim’s car. Only the petitioner returned the second time. Swift testified for the sta te and said that the petitioner told him that he was going to “roll a faggot.” S wift stated that the petitione r admitted to shooting the victim fiv

e times in the head and taking his money. Swift said that he had been asleep at the rest area. The t wo men drove the vic

tim’s car to Indiana, w

here they separated.
The petitioner was arres ted in Indiana and gave sev eral statements. First, he denied riding from Flori da with Swift and denied k nowing anything about the killing. In his second statement, he said that he had been asleep and that Swift admitted to killing the victim. In his final statement, the petitioner admitted to killing the victim. He said that the victim tried to get him drunk and sexually assaulted him in the car. He said that they struggled,and he pulled out a gun. The petit ioner said that he pulled the trigger accidental ly, and it kept dischar ging. He said that Sw

ift then decided to take the victim’s car.

POST-CONVICTION HEARING4 At the ev

identia ry hear

ing, th e petiti oner tes

tified t hat he w

anted to testify at trial, but his attorneys told him that he would incriminate himself and “mess everything up.” He said that he followed thei r advice, but he believ ed it to be wrong. Although he admitted that he kil led the victim, he clai med that his testimony about the victim getting him drunk and making homosexual advances would have helped his case. He said that he had been st aggering around that ni ght and that Swift’s test imony at trial indicated that the petitioner was drunk. He said he told his attorn eys that he and the victim had drunk one-ha lf gallon of vodka. To expl ain the five shots, the petiti oner stated that the gun was an a utomatic weapon.

The pet itioner t estifie d that th ere were th ree witnes ses that s hould ha ve been called in his defense because they would have show n that Swift was not as innocent as he claimed. He sai d that while he and Swi ft were in jail, the w

itnesses heard Swift say that he made a deal with the state to testify against the petitioner. He said Swift denied the exi stence of such a deal in his tes timony at trial.
One of the petitioner’s trial attorneys testified about r epresenting the petitio ner. He

said th at he and

his co-counsel

advise d the pet itioner

not to te stify because of his three different statem ents and their belief that the prosecutors would “destroy” him on cros

s-examination. He said that the petitioner was not articulate. The attorney also questione d how well the petit ioner’s version of the facts would stand against questioning by the state.

The petitioner’s trial attorney testified that the petitioner cha nged his story during th e case. He said that the petit ioner’s p urported witnesses claimed t o have evidence indicating that Swift was the perpetr ator, however, the peti

tioner admitted to his attorneys that he ki lled the victim. The attor ney acknowledged that the petitioner was the only witness to the actual killi ng, but he said he still did not think that the5

petitioner should have tes tified. The attorney stress ed that although they adv ised the petitioner not to testify, the petitioner could have t estified if he had so desired.
The petitioner’s trial att orney said that he took sta tements from the three witnesses that the petiti oner wanted to call and obtai ned a continuance because he could not locate one of the witnesses. However, h e said he ultimately qu estioned using the witnesses because thei r testimony was sus pect because it pointed to Sw ift as the perpetrator.
The petitioner’s trial attorney could not recall being told that one-half gallon of vodka had been consumed, nor did he recall the pet itioner emphasizing his intoxication. He w

as aware of evidence that the petitioner had been drinkin g, but he stated that he did not think that intoxication was the “lynchpin” of the case. However, he said he thought that he and his co-counsel did request an instruction on voluntary intoxication.

An assistant district at torney testified that Sw ift did not make a deal to receive a set period of ja il time. He said that Sw ift was convicted upon hi s pleas of accessory after the fact of first degree murder and Class D felony theft, and he received an effective sentence of two y ears.
The post-conviction court made detailed findings of fact and concl usions of law. In sum, it found no consti tutional errors in the j ury instructions and c oncluded that the petitioner receiv ed quality representation from his attorneys.

I. INSTRUCTIONS6 Preliminarily, w

e note that the state chose in it s brief not to address the merits of the petitioner’s co mplaints about instructions,electing instead to rel y upon waiver and the fact that the post-conviction rec ord on appeal does not include the instructions from the trial about which the petitioner complains. None of the record o f the convicting case was made a part of the record on appeal. Although the state ’s answer to the petition i n the trial court assert s waiver, the state

made no such assertion at the evidentiary hear

ing, and the issue was

never addressed at the hear ing or in the trial court’s memorandum order. Under such a record, we presume that the stat e did not pursue waiver i n the trial court. Also,we may take judicial notice of the record in the direct appeal. See State ex rel. Wilkerson v. Bomar , 213 Tenn. 499, 505, 376 S.W.2d 451, 453 (Tenn. 1964). The record contains the jury instr uctions given by the trial court.
The petitioner had the obligati on to ensure that the record i n this postconviction appeal containe d all trial court ev

ents that are relevant to the issues raised. See T.R.A.P. 24. In a post-conv iction case, this often means inc luding substantial portions of the record from the ori ginal case, whether b y exhibit or by

consolidation of the appellate record existing in the convicting case. In any event, the state should address the merits of the issues raised on appeal even if it believes that a procedural default has occurred. Under the foregoing circumstances, we will review the petitioner’s issues on appeal.
(A) INTOXIC ATION The petitioner contends that the tr ial court’s failure to i nstruct the jury on voluntary intoxication violated his due process rights because it omitted from the jury’s consideration evidence material to his defense. He argues that voluntary intoxication is a defense to first degree murder because it could have prev ented the petitioner from forming a premeditated and deliber ate design to kill. See State v. Bullington , 532 S.W.2d 556, 560-61 (Tenn. 1976). The original r ecord reflects Swift’s t

estimony that he7

believed that the petitioner had a lot to drink because the petitioner smelled of alcohol and was staggering . In his statement to the polic e, the petitioner said only that the victim tried to get him drunk. The statement also notes that there was a larg e bottle of vodka in the trunk of the v ictim’s car.
The post-conviction court found that no request for an instr uction was made and that none of the evidence in the case suggested that the petitioner might have been intoxicated. The c ourt also noted that the petiti oner was convicted of felony murder, not premeditated and delibe rate murder.

We view due process to be implicated by the failure to instruct a jury regarding fundamental defenses fairl y raised by the ev

idence. See , e.g ., Connect icut v. Johnson , 460 U.S. 73, 103 S. Ct. 969 (1983). Also, we believ e that Swift’s testimony and the petitioner’s statement fair ly raise the issue of the petitioner’s mental state. However, the fact that th e petitioner was conv icted of felony murder dispels the concerns raised by the petitioner. He was not convicted of premeditated and deli berate murder, which includes the mental state that is the cornerstone of the petitioner’s argument. In light of this fact, we conclude that the peti tioner has failed to show how his due process rights were violated by the lack of an instruction on voluntary intoxication.
(B) SEQUENTIAL INSTRUCTION

The petitioner contends that the tr ial court erred by i nstructing the jury to consider premeditated and deliberate murder and lesser inc luded offenses only after determining that the petitioner was not guilty of felony murder. He argues that this instruction precluded the j ury from considering hi s claim of self-defense. This court has twice rejected this argument. In State v. Rutherford , 876 S.W.2d 118, 119-20 (Tenn. Crim. App. 1993), this cour t determined that a sequential jury charge did not

prevent the8

jury from fulfilling it

s duty to determine the degr ee of homicide. This court reached the same conclusion in State v. Raines , 882 S.W.2d 376, 381-82 (Tenn. Crim. App. 1994). We view thes e cases to be con trolling.
(C) FIRST DEGREE M URDER The petitioner contends that the tr ial court’s instruct ion on first degree murder violated his ri ght to due process because it directed a finding of malice, an essential element of first degree murder. The trial court instruct ed the jury as follows:

Malice is an essen t ial element of this offense, and it may be either express or

implied . . . . Express malice is actual malice against the party slain and ex ists where a pe rson ac tually contemplates the injury or wr ong he inflicts. Implied malice is malice not against the

party slain, but malic

e in general, or

that condition of mind which indicates a w icked, depraved, and malignant

spirit and heart, regardless of socia l duty, and fatally bent on mischief. Implied malice may be found to exist where the wron gdoer did not intend to slay the person killed, but death resulted fro m a consciously unlaw ful act, done intentionally and with knowledge on the wrongdoer’s part that the act was directly

perilous to human life. Inthis event, there is implied such a high degree of co nsciousn ess and willful recklessne ss as to amount to that malignity of heart constituting malice. A few sentences later, the tr ial court stated, “You’ re reminded that the State alw ays has the burden of proving ev ery element of the crime char ged beyond a reasonable doubt.”
The petitioner contends that in th e last sentence of the instructi on, the trial court essentially directed a finding of malice. He argues that when the trial court told the jury that “in this event there is . . . malice,” it was saying that in this particular case there is malice. We disagree. A fair reading of the instruction s hows that the trial cour t, in explaining implied malice, said that in the event that death results from a wrongdoer’s conscious unlawful act, done intentionally and with knowledge that the ac t was perilous to human life, malice can be implied even if the wrongdoer did not ha ve the intent to kill the victim. Thus, the last sentence simply relates to the previous sentence. In no way do we read the last sentenc e to be a finding by the tri al court that there is mali ce in the9

present case, nor do we believe that the jury would have so concluded, particularly in light of the fact that the trial court repeated that the state al ways carried the b urden of proof beyond a reasonable doubt. Thi s issue is without mer it.
(D) REASONABLE DOUBT The petitioner contends that the trial court’s instruction on reaso nable doubt lowered the standard of pr oof for the state. He argues that the trial court’s use of the phrase “let the mind rest easy” combined with “moral certainty” r esulted in a burden of proof lower than “beyond a reasonable doubt.” The trial cou rt’s instruction to the jury with respect to the burden of proof was as follows:

Now reasonable do ubt is that doubt engendered by an investigationof all of the proof in the case and an inability after such an invest iga tion to let the mind rest easi ly as to the certaint yof guilt. Reasonable doubt does not mean a captious, or a po ssible, or an imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, bu t moral ce rtainty is re quired, and this certainty is required as to ev

ery proposi tion of proof requisite to constitute the o f fense. The state must prove beyo nd a reasonable doubt all of the elements of the crimes charged

. .

. . This court has previousl y determined that reasonable doubt instructions nearly identical to the

one given in the present case were proper. See State v. Sexton , 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn v. State , 885 S.W.2d 364, 365 (Tenn. Crim. App. 1994). This issue is without meri

t.

II. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner claims that his counsel was ineffective for (1) refusing to allow the petitioner to

testify, (2) failing to secure the testimony of a w itness, (3) failing to develop a record to suppo rt the petitioner’s all egation that all jurors who read a newspaper article the da y before trial should hav e been stricken for cause, and ( 4) failing to object to the err oneous jury instructi ons. The state contends that the petitioner received the effective assistance of counsel.10 Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is on the petitioner to show (1) that counsel’s perf ormance was deficient an d (2) that the de ficiency was prejud icial in terms of rendering a reasonable pro bability that the result of the tri al was unreliable o r the proceedin gs fundamentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct.838, 842-44 (1993). The Strickland standard has been applied to the r ight to counsel under Art icle I, Section 9 of the Tennessee Constituti on. State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. The court stated that the range of competence was to be meas ured by the duties and criteria set for th in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel’s conduct, a “fair as sessment of attorney performance r equires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to ev aluate the conduct from counsel’s perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2 065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).

We also note that the approach to the issue of ineffectiv e assistance of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice is not shown, we need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.
(A) PETITIONER’S RIGHT TO TESTIFY11 The petitioner contends that his trial attorneys were ineffective becau se they refused to allow hi m to testify, thus precludi ng a successful claim of self-de fense. At the post-conviction h earing, the following colloquy occurred

between the court and the petitioner: COURT: They didn’t. They didn’t disallow you from te stifying.

You just got through admitting-- PETITIONER: Well, right, well, that’s what I mean. COURT: -- that you w

ere the one that made the decision. PETITIONER: Because of-- COURT: They didn’t tell you, “You are not going to testify,” did they? PETITIONER: No, t hey didn’t, but they convinced me that it would be a gainst my b est inter est to tes tify. This colloquy comports with the trial attor

ney’s testimony at the post-conviction heari ng that although he and his co-counsel told the petitioner that it would not be wise for him to testify, they did not p revent him from testifying . Because there is no evi dence in the record that the petitioner w as prohibited from testifying , this issue is without merit.
(B) MISSING WITNESS The petitioner contends that his trial attorneys were ineffective becau se they failed to secure the tes timony of a witness w

ho would have provi ded testimony that contradicted that of Clifton Sw ift. The petitioner does not speci fy how he was prejudiced, nor does he provide specific information abo ut what the missing witness would have said, oth er than th at the witn ess gener ally gave inf ormatio n that co uld have helped t he defe nse by con tradicti ng Swift’s trial test imony.

First, we conclude that the petitioner has failed to show how his attorneys’ performance was deficient. The peti tioner admitted at the post-conv iction hearing that the missing witness

had testified at the preliminar y hearing but could not be located for trial. He said that he tho ught his attorneys shou ld have tried to obtain a c ontinuance or12

a stipulation from the state regarding the substance of the w itness’ testimony. The record reflects that the trial court did grant one continuance in order fo r the petitioner’s attorneys to locate the w itness, but the witness could not be found. The record reflects that the petitioner’s attorn eys tried to get the s tate to stipulate to the testi mony, but the state refused. The petitioner off ers no suggestions as to what more his attorneys could have done. Furthermore, after a review of the transc ript of a conversation betw een the missing witness and the petitioner’s attorney at the jail, we concl ude that the petitioner has failed to show that he w as prejudiced.
(C) RECORD OF VOIR DIRE The petitioner contends that his trial attorneys w ere ineffective for failing to preserve the record with respect to his c laim that jurors wer

e exposed to prejudicial pretrial publicity. He argues that a newspaper article published the day before his trial, containing incorrect a nd misleading information, w as reason to strike for caus e the jurors who had read the a rticle. He claims that his attorneys failed to pr eserve the record on this issue because they failed to submit an accurate accou nting of their peremptory challenges a nd failed to specifically r equest that any juror be removed from the panel.
Before his conviction will be overturned on appeal, the petitioner must show that the jurors w

ere biased or prejudiced against him. State v. Melson , 638 S.W.2d 342, 360-61 (Tenn. 1992). Mere exposur e to news accounts of the inci dent does not , standin g alone, e stablish bias or pre judice. P rospecti ve jurors ca n have knowledge of the facts surr ounding the crime and stil l be qualified to sit on the jury. State v. Bates , 804 S.W.2d 868, 877 (Tenn. 1991). The test is “w hether the jurors who actually sat and rendered verdicts were prejudiced by the pretrial publicity.” State v. Kyger , 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989).13 We do not believe that the pet itioner has carried his burden with respect to this issue. Although this court noted on direct appeal that review of the i ssue was made difficult by the attorneys’ failure to cite to the record and failure to indicate the use of peremptory challenges, this court nevertheless held that the issue was w ithout merit. Certainly, the better practice would have been to include on the record th e use of peremptory challenges. Nevertheless, the petitioner has not shown prej udice. At the post-conviction heari ng, the trial court noted that the venire was q uestioned about the article and that every

one who read the article stated under oath that they coul d set aside the information and decide the c ase based upon the evidence pres ented at trial. Thus, the petitioner has failed to s how that the jurors w ho were empaneled were bi ased or prejudiced against hi m.
(D) INSTRUCTIONS

Finally, th e petitio ner conte nds that his trial a ttorneys we re ineff ective because they failed to challen ge the jury instruc tions with respect to malice and reasonable doubt. He also arg ues that his attorneys w ere ineffective for failing to advise the jury that his codefendant was an accompli ce as a matter of law.

With respect to the petitione r’s contention that his trial attorneys were ineffective for failing to challenge the malice and reason able doubt jury instructions, having concluded that the instructions were pr oper, we hold that the petit ioner has failed to establish ineffectivenes s. As for his argument about an accomplice, the petitioner indicates in hi s brief that he relies on the ar gument and authorities advan ced earlier in the brief. How ever, nowhere in the b rief is there any arg ument or citation to authority that would support his contention that hi s trial attorneys w ere ineffective for failing to tell th e jury that, as a ma tter of law, Swift was an accomplice, other than citin g authority that notes that an accomplice instruction must be requested.14 In any event, we note that the trial court inst ructed the jury about accomplices and their sig nificance and left it to the jury to determine if Swift was an accomplice. Swift’s tes timony at the trial, as well as the petitioner ’s final statement to the police, did not present Sw ift as an accomplice to the petit ioner’s murder of the victim. Moreover, the petitioner’s statement t o the police would sufficientl y corroborate Swift’s testimony. We do not believe that the pe titioner has shown prejudice in this matter.
In consideration of the foregoing and the record as a whole , we conclude that the trial c ourt pr operly denied t he petit ion for post-con victi on reli ef.

________________________________ Joseph M. Tipto n, Judge
CONCUR:

___________________________ John H. Peay, Jud ge

___________________________ James Curwood W itt, Jr., Judge