# FILED
October 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRI MINALAPPEA LS OF

TENNESSEE AT NASHVILLE JULY SESSION, 1999

CYRUS DEVIL LE WILSON, ) C.C.A. NO. 01C01-9811-CR-00448 )

Appe llant, ) ) DAVIDSON COUNTY V. ) ) ) HON. SE TH NORMAN,JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST- CONVICTI ON)

FOR THE APPELLANT : FOR THE APPELLEE : WILLIA M A. LA NE PAUL G. SUMMERS 3236 Dilton Manki n Road Attorney General& Reporter Murfreesboro, TN 37127 ELIZABETH B.MARNEY Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 VICTO R S. JO HNS ON, III Distri ct Attor ney General KIMB ERLY HAAS Assistant Distri ct Attor ney General Washington Square, Suit e 500 222 2nd Avenue North Nashvill e, TN 37201-1649

OPINION FILED ________________________ VACATED AND REMANDED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

Petiti oner Cyrus D eville W ilson app eals as o f right from th e denia l of his postconvicti on petiti on by the Davids on County CriminalCourt. Peti tioner was convicted by a jury of first degree m urder, and seeks po st-convi ction rel ief on a number of grounds. Because the tri al court’s order denyi ng post-convi ction rel ief is incomplete,
we vacate thejudgment entered by the tri al court and remand the case for the entry of a new order cons istent with this opinion.
I. Procedural History

A re view of t his Court’ s opinion on Pet itioner’s direc t appeal rev

eals tha t Petiti oner was c onvicte d of first d egree murd er by a D avidso n Cou nty jury in February of 1994 , and Pe titioner was senten ced to life im prisonm ent. See State v. Cyrus Devill e W ilso n , C.C.A. No. 01C01- 9408-CR-00266, 1995 WL 676398 at *2, *5 (Davidson County

) (Tenn. Cri m. App., Nashvil le, Nov. 17, 1995) perm. to appeal denied (Tenn. 1996). The convicti on was affirmed by the Court of Crim inal Ap peals in December of 1995. Id. at *1. Per mis sio n toappe al t o th e Ten ness ee Su pre me Court w as den ied on M arch 25 , 1996. Id.

Petitioner, acting pro

se, fi led his i nitialpost-convi ction petiti on on August 15, 1996. Petiti oner alleged that (1) trialcounsel wa s ineffective because counsel was undergoing psychologi cal or substance abuse eval uation duri ng his represe ntation of Petiti oner; (2) the tri al court er red in giv ing a jury instruct ion on reasonabl e doubt thatdid notmeet constit utional standards; (3) tri al counsel wasineffecti ve because counsel fai led to obj ect to thi s instruc tion; (4) the state failedto discl ose an or a l statem en t mad e by P etitione r, desp ite the fa ct that it w as listed in Petitio ner’s discovery request, and the state i ntended to use t he statement at trial ; (5) the state violated Petiti oner’s due process rights because the state cal led a material witness, whose eviden ce wa s part o f the sta te’s proof-i n-chief, as a rebutta l witness; and (6)-3-

the state vi olated Petiti oner’s due process rights because the state failedto identify witnesse s in the ind ictmen t whose testimon y was pa rt of the state ’s proof-in-c hief.

Post-convi ction counsel was appoi nted for Petiti oner, and an amended postconvicti on p etiti on was file d on June 6, 1998. I n the amended petit ion Petit ioner alleged that his trial coun sel was ineffective be cause of co unsel’s failure to locate, inter view, and present al ibi wit ne sses th at were avai lable and wi lling to testi fy on behalf of Petitioner.

II. Facts

In this Co urt’s opinion addressing Petiti oner’s di rect appeal we summarized the facts

of Petit ioner’s case: On September 15, 1992, Met ro Davidson p olic e office rs found the body of Chri stopher Lucket t partl y lodged underneath achain li nk fence in East Nashvi lle. The victi m had sustained a fat al gunshot wound to the head. The off icers also found empty shotgun shell s, shotgun "wadding,"and a b lue duffel bag at t he cr ime s cene . On February 2, 1993, th e Davidson Coun ty G rand Jury i ndicted t he appe llant

for the v ictim's murd er. Th e cas e proc eede d to trial o n January 31, 1994. At trial , the state first

called Chiqu ita Lee, the victim's sister, in orderto establ ish the vi ctim's age and health. Ms. Lee testi fied that the victim was nin ete en y ears ol d at theti me of his murder and that he had a deform ity in his right arm that preve nted its full use. Defense counsel objected on the gr ound th at the state had not given prior not ice oftheir intent to call Ms. Lee as a wit ness . Th e trialcourt over ruled the objecti on. The state next presented evidence to establish a motive for the murder. Officer

Philli p Wright testi fied that duri ng routine pat rol on or about July 20, 19 92, he was stopped by the appell ant who reported t hat the victim, Luckett, had s tolen his car. Officer W right f urther testifi ed that, when aske d if he wanted to swear out a war ran t ag ain st t he v ict im, the appellan t replied "no t right now." D efense couns el objecte d to this testimony

on the ground that

the appell ant's statement to Off icer Wright had not been disclosed priorto tri al. Again, the tri al court ov erruled t he objecti on. Next, the state called two e yewitnesses to the murde r. The first, Rodriguez Lee, test ified that the ap pellant had a twelve- gauge shotgun which came from Mr. Lee's h ouse. Lee added that h e saw the appellant

remove t he gu n fr

om a b lue duffelbag. Lee stated that he sa w the a ppel lant

chasi ng th e vi cti m on th e nig ht of the mu rder . He further testif ied that t he victi m got stuck underneat h a patio fence. Lee-4- then stated that he heard the vi ct i m plea d "[p]lease don't kill me ." According to Lee, the appellant paid no heed to t he victi m's pleas for mercy. Instead, he fir ed point-blank into the victim 's face . Marq uis Harris, another witness for t he prose cu tion, al so testi fied that he saw the appell ant shoot t he victi m in the face. Oth er witnesses co rr oborated this tes timony. Steve Crawley testif ied that hesaw t he ap pellant three weeks pri or to the murder carryi ng a shotgun. Craw le y also testifi ed that he wi tnessed the appe lla nt on the night of the murder "act ing shaky and nervous. " Anotherwitness, Frederick Davi s, testified that he o verhe ard the appellant

state that "he was go ing to get" t he victi m for steali ng the appellant's car. The appellant

testif ied as a wit nes s on his o wn beh alf. Th e appellant

d enied any invol vement in the murder , contendi ng that he was at home with hi s girlf riend at t he time of t he shooting . The appellant

did admit t hat, after the vict im stole hi s car, he t hreatened to "get" the victim. On cross- examination, the stateasked the appell ant if, on the night of the shooting, he was in possessi on of a shotgun. The appellant

responded that

he wa s not. T he sta te then inquire d if all the otherwitnesses who testifi ed that the appellant did have a s hot gun around the time of

the shooti ng were "lying ." The appellant r esponded affirmatively. At the close of

the defens e's case in chief, the s tate call e d Detective Bill Pridem ore as a rebuttal witn ess. Prior to trial, Pridemore had m ade a summary of statements given to h im by Rodriguez Lee during questioni ng. The statemen ts corroborated Lee's trial testimony. On direct exam ination , the sta te ask ed Pr idem ore to re coun t his summ ary of thes e state men ts. Defe nse c ouns el obje cted on the ground thatPridemore was a materi al witness, and thus, shoul d not be permitted to testify as a rebut tal wit ness. The stat e argu e d that the appellant

had "opened the door " when he testi fied o n cross-examinat ion that anyone who s aid he possessed a shotgun on the night o f the m urder was "lyin g." Th e trial j udge overruled defense counsel's obj ection. Wilson , C.C.A. No. 01C01- 9408-CR-00266, 1995 WL 676398 at *1-2.

III . Post- Convicti on Hearings

Two post convicti on hearings were h eld. At t he initi al post-convicti on hearing Petiti oner presented two witnesses, Dawone Matt hews and Brandi Chriswe ll. Both witnessestestified that they were in the gener al vici nity of

the murder on September 15, 1992, and that they saw Petiti oner somewhere other t han the murder sceneat the time th e murd er was c omm itted.-5- Matthewstestif ied that he knew Petiti oner because he was dating Petition er’s sister around the time of

themurd er. Chr iswell , wh o was 12 y ears of

age at t he t ime of the mu rder, testifi ed that she knew Petitioner’s face and name. Bot h Matthews and Chris well tes tifie d that on the da te of the murd er they were in an are a in Nash ville called “the villag e.” At th at tim e both wer e con grega ting with their frie nds–Matth ews was on a basketballcourt, and Chriswell was out on the porch of
an apartm ent adjac ent to the b asketb all court. Both testi fied that Petiti oner was also on the b asketb all court.

When gun shots rang out , Matthews stated that he ran with hi s girlf riend (Pet itioner’s sister)to the home of Pet itioner’s mother. Matthews test ified tha t Petiti oner ran in t he ho use r igh t af ter Matt hews . On cross examinat ion, Mat thews testif ied that Pe titioner w as run ning w ith him imme diately after th e shots were fir ed,
a nd that the pl ace where the vi ctim was kil led was approxi mately 30 yar ds aw a y from the basketball court . Chriswell testified t hat when sh ots wer e fired, she saw Petitione r on the b asketb all court, and that th e gunshots came from an area to the right of her-- away from the cour t.

Both Matthe ws and Chriswelltestif ied that t hey were not cont acted by any attorneys for Peti tioner unt il they were approached by pos t-conv iction co unse l, but thatthey would have testi fied at Petit ioner’s tri al had they been asked. On cross examination both acknowledged t hat they di d not know the date of Petition er’s trial. Matthewsstated th at he did not come forward wit h his information because t he idea “never ca me to m y mind.”

The State ca lled Petition er’s mo th er, Val erie W ilson Ehinlaiye. Ehinlaiye testif ied that Pe ti ti oner ent ere d her

home five to ten minutes af ter theshooting, and thathe entered wit h a woman named Sonya, notwith Matthews. Ehinlai ye also testified that sh e was not ca lled as a witne ss at P etitione r’s trial.-6- The he aring wa s th en c ont inu ed un ti l Octob er 1 4, 1 998, at w hic h ti me Petiti oner called Pe titioner’s trial cou nsel to the stand, an d Petitione r also cho se to testify. Trial co unse l testif ied that he di d undergo psychol ogical and dr ug dependency evaluations, but tha t these occurre d after h is re presentati on of Petitioner, and that hi s license was in good standi ng du ring Pe titioner’s representat ion. Trial co unsel also testified that he did no t recall th e reas onab le doub t instruct ion that was given to t he jury. Post-convi ction counselfor Pet itione r attempted to questi on trialcounsel regar ding the non disclosur e of Petiti oner’s oral statement by t he State, as wel l as the State’s use of a material witnessin rebu ttal, but the post -convict ion court ruled that both issues wer e predetermined.

As to ali bi witnes ses, tria l coun sel tes tified tha t Petition er gav e him the “street”
names of three ind ividuals wh o could p rovide alibis for Petitione r: “Jabbe r,” “Rodn ey,” and “Ice.”

Petiti oner did not provide formal names or addresses for these individuals, but told counsel that they could be located i n a particu lar area of the Edge Hill housin g projects

. Trial counselsaid that he canvassed this area four ti mes looking for these person s, t wice by himsel f, twi ce with an assi stant, but was unsu ccessful ea ch time. Counsel stated th at he did not recognize t he names of Dawone Matthews or BrandiChriswell . Trial counsel test ified t hat Petition er’s mothe r was no t called as a n alibi witnes s beca use sh e could n ot provide an alibi.

Petiti oner testifi ed that he gave trialcounsel the names of seve ral ali bi witnesses: Craig Johnson (“Ice”), “Snake,” “Jab ber,” Dewa n (sic), Rodne y, Randy, and Brandy (si c). Peti tioner stated that he did not pr

ovide trialcounsel wit h the given
names of all the p ossib le alibi w itness es be caus e he w as no t familia r with the ir names, but that the street na mes “are the names that they go by eve ry day.” H e also testifi ed that he did not provi de formal addresses becau se he did not know the m, but tha t these individuals we re in Petitioner’s neighb orhood eve ry day. Petiti oner te st ified t hat he had no personalknowledge of any efforts trialcounsel may or may no t have m ade to loc ate the w itnesses

.-7- Following the hearing the post-conv iction court oral ly dismis sed the peti tion: The Court: The allega tion is ine ffective a ssista nce a nd co unse l in the

matterand un der the law , it is the petiti oner’s burden to carr y t he proof. I have Mr. Wilson sayi ng he gave the names to Mr. Blai r and Mr. Blai r didn’t do anything. M r. Blair tells me he we nt and looked for the w itnesses. The re’s no proof he re that the ou tcom e of the trial wou ld be any different or t hat Mr. Blair was outside of

the requirem ents as far as counsel or is con cerned in a case in this community (si c). The peti tion is dismissed.
The trial court issu ed a writte n order d ismissing t he petiti on, but di d not set forth any findi ngs of fact or conclusi ons of law i n the or der or i n a sep arate
memorandu m.
IV. Analysis

Petition er’s request for post-convi ction rel ief isgov erned by the Pos t Convicti on Procedure Act of 1995. See Tenn . Code Ann. § 40-30 -201, C omp iler’s Notes (1997). As a threshold matter we must decide i f the post-co nvictio n cou rt’s failure to issue wr itten f indings of fact and c onclusions of law preclu des us from addressing Petition er’s appe al. Tenn essee Code Annotated § 40-30-211(b) req uire s a post-con viction trial cou rt to ente r a written order or memorandum upon fi nal disposit ion of a p etit ion, wh ich “sh all set fo rth . . . all gro unds prese nted, a nd sh all state the findi ngs of fact and conclusions

of law wit h regards to each s uch gro und.” (1997). See also Tenn . Sup. C t. R. 28, § 9 (A).

Here, we have no such findings o f fact and con clusions of law. Th e postconvicti on court di sposed of Wilson’s pet ition or ally following the conclusi on of the second evident iary hear ing. The wri tten order enter ed thereafter does not co ntain any fi ndi ngs of f

act and conc lus ion s of

law . No r i s th erea se paratememorandu m.

Section 40 -30-211(b) is identi cal to its pred ecesso r, § 40-30 -118(b). Comp are Tenn. Code Ann. § 40-30-2 11(b) (1997 ) with Tenn. Code Ann. § 40-30-118( b)-8-

(1990). This Court i nterpreted the provi sions of § 40 -30-11 8(b) as creat ing manda tory obligat ions that a trial court must foll ow in a post- convicti on proceeding. See State v. Swanson , 680 S.W.2d 487, 489 (Tenn. Cr im. App. 1984) ( citing Brown
v. State , 445 S.W.2d 6 69 (Ten n. Crim. App. 1 969)). Because t he purpose of t he section was to ensure m eaningful app ellate review, a trial court’s failure to com ply with the section did no t constitute a cons titutional abridgem ent nor d id it render a petition er’s convic tion or s enten ce void or voidab le. Id. (citi ng Georg e v. State , 533 S.W.2d 322 (Tenn. Crim. App. 1975)). The remedy f or a tri al cou rt’s failure to
com ply with § 40-30-118 was assessed on a case-by-case basis: “Non-compliance by the post-convicti on court does not warrant a r

eversal i f the record is s ufficient to effectuate a mea ningful ap pellate revie w . . . . ‘Where the record of t he proceedings containsthe reasons of the tri al judge for dism issing th e petitio n, the re cord is suffic ientto effectua te mean ingful app ellate review.’” Rickm an v. State , 972 S.W.2d 687, 692 (Tenn. Crim. App. 1997) (citi ng Brown v. State , C.C. A. No. 03C01-9107- CR-00233, 1992 WL 143878 (Tenn. Crim. App., Knoxv ille, June 26, 1992); quoting Watkins v. State , C.C. A. No . 11 21, 1989WL 1069 74 ( Tenn . Cr im. App., Knoxvi lle, Sept. 18, 198 9)).

Gi ven that thelanguage of § 40- 30-211(b) i s identi cal to t hat in § 40-3 0- 118(b), we see no reas on to depart from the above reas oning, and a dopt the abo ve as the correct ap proach to interpretin g violations of § 40-3 0-211(b ). Accordi ngly, we turn to the petition and rec ord befo re us to se e if mean ingful app ellate review may be provided.

We are of the op inion th at Petition er’s cla ims m ay not b e me aning fully reviewed. Because the tr ial court did not address all of

the petit ioner’s g rounds, and because we canno t deduce from the record the trial cou rt ’ s findi ngs of fact and conclusionsof law, we must remand the case to t he trialcourt for a complete wri tten order.-9- To begin , Petition er raise d a tota l of seven issues i n his post- convicti on petitions. The trial jud ge ruled two of thos e issues to be pre determ ined. Thus five issues remain ed: (1) whether trialcounsel was inef fectiv e because counsel was undergoing psychologi cal or substance abuse eval uation duri ng his represe ntation of Pet iti oner; (2) whether the t rial cour t erred i n giving a j ury inst ruction on
reason able doub t that did not m eet co nstitutio nal sta ndard s; (3) wh ether tr ial c ounse l
was ineffective because counsel failed to object to this i nstructi on; (4) whether the state violated Pet itioner’s du e proce ss rights w hen the state failed to identify witnessesin the indict ment whose testimony was pa rt of the state ’s proof-in-c hief; and (5) wheth er tr ial couns el was inef fectiv e because counsel failed to locate, inter view, and p resen t alibi witn esse s that w ere av ailable and wi lling to testify on behalf of Petitioner.

The oral disposition of the p etition, however, addresse s one claim– ineffective assistance of counsel as r egards to al ibi witnesse s. Because there are no finding s of fact and concl usions of l aw as regards the four missing issues, we are u nable to provide any review of the trial court’s determinati ons on these claims.

Nor are we a ble to me aningfu lly review the o ne issue that the tr ial co urt did address in disposi ng of the pet ition. Petiti oner alleges ine ff ective ass istance of counsel as to procure ment of ali bi witnesses . There is, however, conf licti ng test imony, and the trial court did n ot state wh ose testim ony it credite d. W e hav e noted th is before: [w]e cannot discern whether the t rial court accre dited the testimony of the petiti oner orhis trial attorney. Although it may be possible to infer thatthe tri al court accredited t he attorney ’s test imony, one of t he main purposes behind requi ring an order wit h findin gs of fact and conclusionsof law i s to prevent this ver y type of speculati on on appea l.” Steve E. Tod d v. State , C.C.A. No. 01C01 -961 2-CR-00503 , 1999 W L 30678 at *4 (Davidson County) (Tenn. Crim. App., Nashv ille, Jan. 16, 1999) (no Rule 11 applicatio n filed).-10- We would like to emphasize that t he Post Conviction Procedure Act is very clear as to wha t must be done b y a trial court o n the final d isposition o f a pet ition: “the court shall ente r a final orde r . . . [and] shall set fort h in the orde r or a wri tten memorandum of the case all grounds present ed, and shall state the findi ngs of fact and conclusions

of law wit h regard to each such ground.” Tenn. Code Ann. § 40-30- 211(b) (1 997) (em phasis a dded); see also Tenn . Sup. C t. R. 28, § 9 (A).

V. Conclusi on

In summ ary, the trial co urt’s dispo sition of t he post-c onvicti on petiti on is not adequate. The oral dispos ition f rom the bench and t he written judgment do not addre ss all of

Petiti oner’s cl aims, and do not cont ain suff icient

finding s of fact

and conclusionsof law that provide t he grounds for the denial of Petitioner’s ineffective assistance of counsel claim as to ali bi witnesses. As a result , we ca nnot pr ovide meaningful appellat e review. We vacate the judgment of t he trialcourt and remand this case for proceedings consistentwith thi s opinion. After the tri al court has made its complete fi ndings of fact and conclusi ons of law as to each ground, it should enter another order eit her granti ng relief or denying the pet ition. The appeal process can then be followed if

the aggrieved party so desi res.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ NORMA McG EE OGLE, Judge