FILED

October 29, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF

TENNESSEE

AT NASHVILLE

JULY SESSION, 1999

CYRUS DEVILLE WILSON, ) C.C.A.

NO. 01C01-9811-CR-00448 

)

Appellant, )

) DAVIDSON COUNTY

V. ) 

)

) HON. SETH NORMAN, JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM A. LANE PAUL G. SUMMERS 

3236 Dilton Mankin Road Attorney General & Reporter

Murfreesboro, TN 37127

ELIZABETH B. MARNEY

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

VICTOR S. JOHNSON, III

District Attorney General

KIMBERLY HAAS

Assistant District Attorney General

Washington Square, Suite 500

222 2nd Avenue North 

Nashville, TN 37201-1649

OPINION FILED ________________________

VACATED AND REMANDED

THOMAS T. WOODALL, JUDGE
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OPINION

Petitioner Cyrus Deville Wilson appeals as of right from the denial of his postconviction petition by the Davidson County Criminal Court. Petitioner was convicted

by a jury of first degree murder, and seeks post-conviction relief on a number of

grounds. Because the trial court’s order denying post-conviction relief is incomplete,

we vacate the judgment entered by the trial court and remand the case for the entry

of a new order consistent with this opinion.

I. Procedural History

 A review of this Court’s opinion on Petitioner’s direct appeal reveals that

Petitioner was convicted of first degree murder by a Davidson County jury in

February of 1994, and Petitioner was sentenced to life imprisonment. See State v.

Cyrus Deville Wilson, C.C.A. No. 01C01-9408-CR-00266, 1995 WL 676398 at *2,

*5 (Davidson County) (Tenn. Crim. App., Nashville, Nov. 17, 1995) perm. to appeal

denied (Tenn. 1996). The conviction was affirmed by the Court of Criminal Appeals

in December of 1995. Id. at *1. Permission to appeal to the Tennessee Supreme

Court was denied on March 25, 1996. Id.

Petitioner, acting pro se, filed his initial post-conviction petition on August 15,

1996. Petitioner alleged that (1) trial counsel was ineffective because counsel was

undergoing psychological or substance abuse evaluation during his representation

of Petitioner; (2) the trial court erred in giving a jury instruction on reasonable doubt

that did not meet constitutional standards; (3) trial counsel was ineffective because

counsel failed to object to this instruction; (4) the state failed to disclose an oral

statement made by Petitioner, despite the fact that it was listed in Petitioner’s

discovery request, and the state intended to use the statement at trial; (5) the state

violated Petitioner’s due process rights because the state called a material witness,

whose evidence was part of the state’s proof-in-chief, as a rebuttal witness; and (6)
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the state violated Petitioner’s due process rights because the state failed to identify

witnesses in the indictment whose testimony was part of the state’s proof-in-chief.

Post-conviction counsel was appointed for Petitioner, and an amended postconviction petition was filed on June 6, 1998. In the amended petition Petitioner

alleged that his trial counsel was ineffective because of counsel’s failure to locate,

interview, and present alibi witnesses that were available and willing to testify on

behalf of Petitioner.

II. Facts

In this Court’s opinion addressing Petitioner’s direct appeal we summarized

the facts of Petitioner’s case:

On September 15, 1992, Metro Davidson police officers found

the body of Christopher Luckett partly lodged underneath a chain link

fence in East Nashville. The victim had sustained a fatal gunshot

wound to the head. The officers also found empty shotgun shells,

shotgun "wadding," and a blue duffel bag at the crime scene. On

February 2, 1993, the Davidson County Grand Jury indicted the

appellant for the victim's murder. The case proceeded to trial on

January 31, 1994.

At trial, the state first called Chiquita Lee, the victim's sister, in

order to establish the victim's age and health. Ms. Lee testified that the

victim was nineteen years old at the time of his murder and that he had

a deformity in his right arm that prevented its full use. Defense counsel

objected on the ground that the state had not given prior notice of their

intent to call Ms. Lee as a witness. The trial court overruled the

objection.

The state next presented evidence to establish a motive for the

murder. Officer Phillip Wright testified that during routine patrol on or

about July 20, 1992, he was stopped by the appellant who reported that

the victim, Luckett, had stolen his car. Officer Wright further testified

that, when asked if he wanted to swear out a warrant against the victim,

the appellant replied "not right now." Defense counsel objected to this

testimony on the ground that the appellant's statement to Officer Wright

had not been disclosed prior to trial. Again, the trial court overruled the

objection.

Next, the state called two eyewitnesses to the murder. The first,

Rodriguez Lee, testified that the appellant had a twelve-gauge shotgun

which came from Mr. Lee's house. Lee added that he saw the

appellant remove the gun from a blue duffel bag. Lee stated that he

saw the appellant chasing the victim on the night of the murder. He

further testified that the victim got stuck underneath a patio fence. Lee
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then stated that he heard the victim plead "[p]lease don't kill me."

According to Lee, the appellant paid no heed to the victim's pleas for

mercy. Instead, he fired point-blank into the victim 's face. Marquis

Harris, another witness for the prosecution, also testified that he saw

the appellant shoot the victim in the face.

Other witnesses corroborated this testimony. Steve Crawley

testified that he saw the appellant three weeks prior to the murder

carrying a shotgun. Crawley also testified that he witnessed the

appellant on the night of the murder "acting shaky and nervous."

Another witness, Frederick Davis, testified that he overheard the

appellant state that "he was going to get" the victim for stealing the

appellant's car.

The appellant testified as a witness on his own behalf. The

appellant denied any involvement in the murder, contending that he

was at home with his girlfriend at the time of the shooting. The

appellant did admit that, after the victim stole his car, he threatened to

"get" the victim. On cross- examination, the state asked the appellant

if, on the night of the shooting, he was in possession of a shotgun. The

appellant responded that he was not. The state then inquired if all the

other witnesses who testified that the appellant did have a shotgun

around the time of the shooting were "lying." The appellant responded

affirmatively.

At the close of the defense's case in chief, the state called

Detective Bill Pridemore as a rebuttal witness. Prior to trial, Pridemore

had made a summary of statements given to him by Rodriguez Lee

during questioning. The statements corroborated Lee's trial testimony.

On direct examination, the state asked Pridemore to recount his

summary of these statements. Defense counsel objected on the

ground that Pridemore was a material witness, and thus, should not be

permitted to testify as a rebuttal witness. The state argued that the

appellant had "opened the door" when he testified on

cross-examination that anyone who said he possessed a shotgun on

the night of the murder was "lying." The trial judge overruled defense

counsel's objection.

Wilson, C.C.A. No. 01C01-9408-CR-00266, 1995 WL 676398 at *1-2.

III. Post-Conviction Hearings

Two post conviction hearings were held. At the initial post-conviction hearing

Petitioner presented two witnesses, Dawone Matthews and Brandi Chriswell. Both

witnesses testified that they were in the general vicinity of the murder on September

15, 1992, and that they saw Petitioner somewhere other than the murder scene at

the time the murder was committed. 
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Matthews testified that he knew Petitioner because he was dating Petitioner’s

sister around the time of the murder. Chriswell, who was 12 years of age at the time

of the murder, testified that she knew Petitioner’s face and name. Both Matthews

and Chriswell testified that on the date of the murder they were in an area in

Nashville called “the village.” At that time both were congregating with their

friends–Matthews was on a basketball court, and Chriswell was out on the porch of

an apartment adjacent to the basketball court. Both testified that Petitioner was also

on the basketball court.

When gun shots rang out, Matthews stated that he ran with his girlfriend

(Petitioner’s sister) to the home of Petitioner’s mother. Matthews testified that

Petitioner ran in the house right after Matthews. On cross examination, Matthews

testified that Petitioner was running with him immediately after the shots were fired,

and that the place where the victim was killed was approximately 30 yards away

from the basketball court. Chriswell testified that when shots were fired, she saw

Petitioner on the basketball court, and that the gunshots came from an area to the

right of her--away from the court.

Both Matthews and Chriswell testified that they were not contacted by any

attorneys for Petitioner until they were approached by post-conviction counsel, but

that they would have testified at Petitioner’s trial had they been asked. On cross

examination both acknowledged that they did not know the date of Petitioner’s trial.

Matthews stated that he did not come forward with his information because the idea

“never came to my mind.”

The State called Petitioner’s mother, Valerie Wilson Ehinlaiye. Ehinlaiye

testified that Petitioner entered her home five to ten minutes after the shooting, and

that he entered with a woman named Sonya, not with Matthews. Ehinlaiye also

testified that she was not called as a witness at Petitioner’s trial.
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The hearing was then continued until October 14, 1998, at which time

Petitioner called Petitioner’s trial counsel to the stand, and Petitioner also chose to

testify. Trial counsel testified that he did undergo psychological and drug

dependency evaluations, but that these occurred after his representation of

Petitioner, and that his license was in good standing during Petitioner’s

representation. Trial counsel also testified that he did not recall the reasonable

doubt instruction that was given to the jury. Post-conviction counsel for Petitioner

attempted to question trial counsel regarding the non disclosure of Petitioner’s oral

statement by the State, as well as the State’s use of a material witness in rebuttal,

but the post-conviction court ruled that both issues were predetermined.

As to alibi witnesses, trial counsel testified that Petitioner gave him the “street”

names of three individuals who could provide alibis for Petitioner: “Jabber,”

“Rodney,” and “Ice.” Petitioner did not provide formal names or addresses for these

individuals, but told counsel that they could be located in a particular area of the

Edge Hill housing projects. Trial counsel said that he canvassed this area four times

looking for these persons, twice by himself, twice with an assistant, but was

unsuccessful each time. Counsel stated that he did not recognize the names of

Dawone Matthews or Brandi Chriswell. Trial counsel testified that Petitioner’s

mother was not called as an alibi witness because she could not provide an alibi. 

Petitioner testified that he gave trial counsel the names of several alibi

witnesses: Craig Johnson (“Ice”), “Snake,” “Jabber,” Dewan (sic), Rodney, Randy,

and Brandy (sic). Petitioner stated that he did not provide trial counsel with the given

names of all the possible alibi witnesses because he was not familiar with their

names, but that the street names “are the names that they go by every day.” He

also testified that he did not provide formal addresses because he did not know

them, but that these individuals were in Petitioner’s neighborhood every day.

Petitioner testified that he had no personal knowledge of any efforts trial counsel

may or may not have made to locate the witnesses. 
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Following the hearing the post-conviction court orally dismissed the petition:

The Court: The allegation is ineffective assistance and counsel in the

matter and under the law, it is the petitioner’s burden to

carry the proof. I have Mr. Wilson saying he gave the

names to Mr. Blair and Mr. Blair didn’t do anything. Mr.

Blair tells me he went and looked for the witnesses.

There’s no proof here that the outcome of the trial would

be any different or that Mr. Blair was outside of the

requirem ents as far as counselor is concerned in a case

in this community (sic). The petition is dismissed.

The trial court issued a written order dismissing the petition, but did not set

forth any findings of fact or conclusions of law in the order or in a separate

memorandum.

IV. 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, Compiler’s

Notes (1997). As a threshold matter we must decide if the post-conviction court’s

failure to issue written findings of fact and conclusions of law precludes us from

addressingPetitioner’s appeal. Tennessee Code Annotated § 40-30-211(b) requires

a post-conviction trial court to enter a written order or memorandum upon final

disposition of a petition, which “shall set forth . . . all grounds presented, and shall

state the findings of fact and conclusions of law with regards to each such ground.”

(1997). See also Tenn. Sup. Ct. R. 28, § 9(A). 

Here, we have no such findings of fact and conclusions of law. The postconviction court disposed of Wilson’s petition orally following the conclusion of the

second evidentiary hearing. The written order entered thereafter does not contain

any findings of fact and conclusions of law. Nor is there a separate memorandum.

Section 40-30-211(b)is identical to its predecessor, § 40-30-118(b). Compare

Tenn. Code Ann. § 40-30-211(b) (1997) with Tenn. Code Ann. § 40-30-118(b)
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(1990). This Court interpreted the provisions of § 40-30-118(b) as creating

mandatory obligations that a trial court must follow in a post-conviction proceeding.

See State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984) (citing Brown

v. State, 445 S.W.2d 669 (Tenn. Crim. App. 1969)). Because the purpose of the

section was to ensure meaningful appellate review, a trial court’s failure to comply

with the section did not constitute a constitutional abridgement nor did it render a

petitioner’s conviction or sentence void or voidable. Id. (citing George v. State, 533

S.W.2d 322 (Tenn. Crim. App. 1975)). The remedy for a trial court’s failure to

comply with § 40-30-118 was assessed on a case-by-case basis: “Non-compliance

by the post-conviction court does not warrant a reversal if the record is sufficient to

effectuate a meaningful appellate review . . . . ‘Where the record of the proceedings

contains the reasons of the trial judge for dismissing the petition, the record is

sufficient to effectuate meaningful appellate review.’” Rickman v. State, 972 S.W.2d

687, 692 (Tenn. Crim. App. 1997) (citing Brown v. State, C.C.A. No. 03C01-9107-

CR-00233, 1992 WL 143878 (Tenn. Crim. App., Knoxville, June 26, 1992); quoting

Watkins v. State, C.C.A. No. 1121, 1989 WL 106974 (Tenn. Crim. App., Knoxville,

Sept. 18, 1989)).

Given that the language of § 40-30-211(b) is identical to that in § 40-30-

118(b), we see no reason to depart from the above reasoning, and adopt the above

as the correct approach to interpreting violations of § 40-30-211(b). Accordingly, we

turn to the petition and record before us to see if meaningful appellate review may

be provided.

We are of the opinion that Petitioner’s claims may not be meaningfully

reviewed. Because the trial court did not address all of the petitioner’s grounds, and

because we cannot deduce from the record the trial court’s findings of fact and

conclusions of law, we must remand the case to the trial court for a complete written

order.
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To begin, Petitioner raised a total of seven issues in his post-conviction

petitions. The trial judge ruled two of those issues to be predetermined. Thus five

issues remained: (1) whether trial counsel was ineffective because counsel was

undergoing psychological or substance abuse evaluation during his representation

of Petitioner; (2) whether the trial court erred in giving a jury instruction on

reasonable doubt that did not meet constitutional standards; (3) whether trial counsel

was ineffective because counsel failed to object to this instruction; (4) whether the

state violated Petitioner’s due process rights when the state failed to identify

witnesses in the indictment whose testimony was part of the state’s proof-in-chief;

and (5) whether trial counsel was ineffective because counsel failed to locate,

interview, and present alibi witnesses that were available and willing to testify on

behalf of Petitioner.

The oral disposition of the petition, however, addresses one claim– ineffective

assistance of counsel as regards to alibi witnesses. Because there are no findings

of fact and conclusions of law as regards the four missing issues, we are unable to

provide any review of the trial court’s determinations on these claims.

Nor are we able to meaningfully review the one issue that the trial court did

address in disposing of the petition. Petitioner alleges ineffective assistance of

counsel as to procurement of alibi witnesses. There is, however, conflicting

testimony, and the trial court did not state whose testimony it credited. We have

noted this before: 

[w]e cannot discern whether the trial court accredited the testimony of

the petitioner or his trial attorney. Although it may be possible to infer

that the trial court accredited the attorney’s testimony, one of the main

purposes behind requiring an order with findings of fact and

conclusions of law is to prevent this very type of speculation on appeal.”

Steve E. Todd v. State, C.C.A. No. 01C01-9612-CR-00503, 1999 WL 30678 at *4

(Davidson County) (Tenn. Crim. App., Nashville, Jan. 16, 1999) (no Rule 11

application filed). 
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We would like to emphasize that the Post Conviction Procedure Act is very

clear as to what must be done by a trial court on the final disposition of a 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.” Tenn. Code Ann. § 40-30-

211(b) (1997) (em phasis added); see also Tenn. Sup. Ct. R. 28, § 9(A). 

V. Conclusion

In summ ary, the trial court’s disposition of the post-conviction petition is not

adequate. The oral disposition from the bench and the written judgment do not

address all of Petitioner’s claims, and do not contain sufficient findings of fact and

conclusions of law that provide the grounds for the denial of Petitioner’s ineffective

assistance of counsel claim as to alibi witnesses. As a result, we cannot provide

meaningful appellate review. We vacate the judgment of the trial court and remand

this case for proceedings consistent with this opinion. After the trial court has made

its complete findings of fact and conclusions of law as to each ground, it should enter

another order either granting relief or denying the petition. The appeal process can

then be followed if the aggrieved party so desires.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JERRY L. SMITH, Judge

___________________________________

NORMA McGEE OGLE, Judge