### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Septem ber 18, 200 2 Session
DONALD G. BROOKS v. STATE OF TE NNESSEE
Direct Appeal from the Circuit Court for Montgom ery County No. 040870 John H. Gasaway, III, Judge

No. M2002-00386-CCA-R3-PC - Filed February 11, 2003

Petitioner, Donald G. Brooks, filed a p etition fo r post-c onviction

relief f rom his co nvictions for firs t degree felony murder, especia

lly aggr avated r obbery , theft of

propert y over $1,000 and setting fire to person al property. I

n his petition, Petitioner alleged that he received ineffective assistance o f counsel at trial a

nd on appe al. Follo wing an evidenti ary

hearing , the post- convicti on court co ncluded that Petition er’s ap

pellate c ounsel ha

d render ed ineff ective a ssistance

when he f

ailed to r equest a transcript of Petitioner’s sentencing hearing on a ppeal. The post-conviction court found that all of the other grounds pre sented by Pet itioner for post-conviction relief were without merit. After a caref ul revie w, we af

firm in pa rt and re verse in part the judgmen t of the po st-convi ction cou rt. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed in Part and Reversed in Par t

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which James Curwood Witt, Jr., J., joined. R OBER T W. W EDEMEYER , J., not p artic ipati ng.
Robert T. Batema

n, Clarksv

ille, Ten nessee, for the a

ppellant , Donald G . Brooks

. Paul G. Summ

ers, Attorney Gene

ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; John Wesley Carney , Jr., District Attorney Genera l; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION I. Procedural History Following a jury

tri al, Petitioner, Donald G. Brooks, was convicted of first deg ree felony murder, especially a

ggravated robber

y, theft of prope

rt y over $1,000 and setting fire to personal pr op er ty. He was se

ntenced to life imp

risonmen t for fir st degr

ee felo ny m

u r der, twenty- five yea

rs for especially a

ggravated robber

y, four y ears for theft

of prope rty , and two y

ears fo r setting fire to personal property. The

trial court ordered the murder, robbery

and setting fire sentences to be serve d-2-

consecu tively and the theft sentence

to be served concurrently , for an effective sentence of life plus twenty -seven y

ears. Pe titioner w as repr

esented by d iffere nt counse l at trial a nd on appe al.

In his direct appeal, Petitioner challenged the suff iciency of the convicting evidence and the length of his sentence. Petitioner did not specifically cha

llenge the trial court’s order of consecutive sentencing in his brief but argued instead that his sentence was exce ssive bec ause

his crime s should have been merged into one conviction. The State, on the other ha nd, interpreted Petitioner’s sentencing issues as a challenge to the trial court’s order of consecu tive sente ncing a nd argued in its brief that P etitioner was an appropriate candidate for consecutive sentencing. After de nying Petitioner’s request

for merger of his crimes into one conviction, this Court concluded that a review of the trial court’s sentencing determinations wa s pr ecluded because the record on a ppeal did not include a transcript

of the sentencing hearing upon w hich the trial court’s determinations were based. O n June 9, 1998 , this Court issued an

opinion af

firming the judg ment of the

trial cou rt. Stat e v
. Brooks , No. 01C01-9703-CC-00099, 1999 WL 219629 (Tenn. Crim. App. June 9, 1998 ), perm. to appeal denied (Tenn. December 7, 1998).

On June 21, 19 99, Petitio ner cha llenge d his convi ctions in a pro se pe

tition forpostconviction relief, as amended after appointment of c ounsel, alleging in effectiveness of counsel at boththe trial and appellate levels. Following an evide ntiary hear

ing, the post-conviction court determinedthat Petitioner’s appellate counsel had rendered ineffective assistance of counsel when he failed to

request a transcript of the sentencinghearing on appea l which re sulted in th

e inabilit y of this Court to review the issue of consecutivesente ncing. The post-conviction court concluded that “the Petitioner should be allowedappellate review of the issue of conse cutive se

ntencing .” The po stconvicti on court d

enied Pet itioner’ s reques t for post- convicti on relief on all oth er gro unds.

Petitioner now appe als t hat portion of the post-conviction court’s determination that he received effectiveassistance of counsel at trial and on appeal. Petitioner alleg es that trial counsel’s conduct was deficient

because trial cou nsel fail ed to (1) challenge the trial court’s c harge to the jury
on the possible range of punishment for e ach offense in the indictment except first degree fe lony murder and impro

perly refer enced li fe impris onment wit hout the po ssibility

of parol e and dea

th as possible punishments for first degree felony murder when the State did not seek these sentences; (2) object to th e tria l cour t’s ch arge to the jury that fail ed to cha

rge the lesser- included

offense s for fir st degree felony murder ; (3) object to improper comments by the prosecution d uring closing argume nts; (4) adequa

tely interview and inve stigate witnesse s w ho could have strengthened Petitioner’s alibi
an d provided information concerning another potential de fendant; and (5) adequately advi s e Petitioner of his rig

ht to testify at tri al and ins ure that Petitioner

knowing ly w aived hisright to te st if y. In addition, Petitioner alleges that his appellate counsel also rendered ineffective assistance when he failed to appeal the trial court’s jury

instructi ons, the pr

osecutio n’s improp er comme nts in closing argument, and the violation of Petitioner’s constitutional right to be he ard.

Petitioner conclude s h is argu

ment with a

catch- all alleg ation tha

t the tria l court e rred in denying Petitioner relief

on all other issues raised in his originalpetition for post-conviction relief that were not specifically a

ddressed in his brief. Not only doe s Petitioner fail to ide ntify specific ally-3-

which issues he is referringto, Petitioner presents no arguments, authority or references to the record which would support

the claims purportedly r

aised in this general allegation. Ther efore, we find

the allegation s which Pet

itioner a ttempts to r

aise in hisconcluding arg ument ar e waive d under Rule 10(b) of the Court of Criminal Appeals of Tennessee. See also Tenn. R. A pp. P. 27(a

)(7); State v. Killebrew , 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988), perm. to appeal denied (Tenn. 1998).

II. Fac tual Backgr

ound

On October

28, 1994, Floyd By

rd, a truck driver, spotted a man ly ing on the side of the road. He drove to Hopkinsvile Elevator C ompa ny and told two employ ees to call 911. When the emergency

medical personnel arrived on the scene, they could not save the victim , Mr. Wisniewski. Shelly Hogue, a secretary

at Hopkinsville Elevator, testified that she saw a cream color car speeding up Barge Point Road around 4:00 p.m.. A white man with shoulder length, dark hair was in the car. Adeline Wisniewski , the victim’s wife, testified that the victim owned a light beige 1985 Chry sler New Yorker with a handicap license plate

. Edwin Lunceford, an inmate in the Montg omery County jail at the time of trial, testified under a conditional gran t of immu nity from prosecution. Ac cording to Mr. Lunce ford, he and Petitioner met at the Pickle Factory on October 28, 1994. The pair drank throughout the afternoon and were joined by

Randy Herdman , Rosema

ry De vito and the victim. A t some poin

t, the vic tim offered to take Mr. Herdman home. Mr. L unceford, however, actually drove because the victim was intoxicated. Petitioner, Mr. Lunceford, Mr. He rdman andthe victim left the Pickle Factory in the victim’s car. On the way to Mr. Her d man’s house, Petitioner bought a twelve-pack of B ud Light beer. The men dropped Mr. Herdman off at his ho m e and drove off. They stopped to relieve themselves on Barge Point Road. After Mr . Lunceford was f inished, he turned around and saw Petitioner holding t he victim b y the head w ith a knife to the vic tim’s thro at. Petiti oner t old Mr. Lunceford

to get the victim’s wallet off the trunk. Mr. Lunceford punc hed the victim on th

e jaw so that the victim would not be able to identify them. Petitioner then cut the victim’s throat with his knife.

Le aving the victim by the side of the roa d, Petitioner and Mr. Lunceford dr ove off , wit h Petitioner driving. Du ring t he afternoon, they bought and smoked some crack cocaine and then drove to Copper Creek. Petitioner gaveMr. Lunceford $40 fr om the victim’s wallet and then threw Petitioner’s knife andthe wallet onto the creek bank. When Petitioner and Mr. Lunceford inspecte d the trunk of t

he victim’ s car , they found four ha lf gallon containers of whiskey , two cartons of cigar ettes, a tool box, and

other ite ms.
Petitioner and Mr. Lunceford c ontinued driving around until they headed for the home of Connie Gonz al ez , t he Pe ti ti on er ’s gi rl fr ie nd . T he y pa rk ed th e v ic ti m’ s c ar in th e b re ez e w ay of a churchbuilding near

Ms. Gonzalez’s home, doused the car with charcoal lighter fluid and set it on fire. They spent the nig

ht at Ms. Gonzalez’s home, drinking and smoking crack

cocaine. While they were the re, Petiti oner hid t

he victim’ s car ke

ys i n a stuff

ed anima l.-4-

After Mr . Lunceford appr

oached the police, he agreed to wear a “wire” to tape h i s conversations with Petitioner. During his first conversation, Petitioner admitted killing the victim, butthe wire malfunctioned . Lat er, Petitioner denied knowing any thing about the crime, and he laughe d when he

said that.

At trial, Ms. Gonzalez testified that she c alled the

Pickle Factor y e arlier in the aft

ernoon to
see when Petitioner wa s goin g to visit her. Petitioner told her “they”were going to drop Mr. Herdman off at his house and come on over. L ater, when Petitioner had not shown up, Ms. Gonzalez telephonedMr. Herdman who told her “they” had just left. Petitioner andMr. Lunceford arrived at Ms. Gonzalez’s home an hour and a half to two hours later.

Ms. Gonzalez confirmed that Petitioner and Mr. Luncef ord spent the night at

her house. She
sa id th e m en ar ri ve d w it h s om e b ee r a nd tw o h al f g al lo ns of wh is ke y.
Lorena Parr, an employee of the Money Tree, confirmed

that Detective Alan Charvis of the Clarksville Police Department, retrieved a tool box from the pawn shop. Detective Charvis testified that the location of the tool box and the identity of the person who pa wned it was consistent with the information provided by Mr. L unceford. Detective Scott Cutler of the Clarksville Police Department recovered two BudLight cans from Barg e Point Roa

d. The la

tent fing erprintson the ca ns matche d Petitione

r’s f ingerp rints

. During a search of Ms. Gonzalez’s home, the police officers discovered a torn stuffe d animal with the victim’s keys and key ring inside.

Doctor Charles Harlan, assistant county me dical examiner and consulting forens ic patholog is t for Montgome

ry Count y, conducted a

n autopsy on the victim. The autopsy revealed a 6.60 inch incision of the victim’s neck and trachea which Dr. Harlan testified was consistent with an incision made by a knife. Dr. Harlan also stated that the victim had a fractured jaw and lacerations around the mouth which were inflicted at or near the time of dea th.

Mike Nelson, a

n inmate w ith the Department of Correction, shared a cell with Petitioner

in Ju ne, 1996. Mr. Nelson testified that the Petitioner told him that Petitioner had killed a man and burned the victim’s car at a church.

In support of his defense, Petitioner presented the tes timony of D ebbie O’Bry an, a former barte nder and manager of the Pickle Fa ctory. She recalled that Petitioner, Mr. Luncefor d and th e victim were at the bar the afternoon of the murder but did not remember seeing Mr. Her dman. According to her testimony , Petitioner left the bar periodically

but was never gone

longer than ten
or fifteen minutes. Petitioner was at the bar when Ms. O’Bry an left to buy cig arettes and chewing gum for the bar, and he was there when she returned forty -five minutes later. Dorothy Suggs, a part- time employee of the Pickle Factory

at the time of the murder, did not learn about the victim’s death until some time later. Ms. O’Bry an reminded her that th e murder-5-

occurr ed on t he day Ms. Suggs h ad joi ned th e vict im and other s in d rinki ng at th e bar. M s. Su ggs recalled that the victim said he wanted to go to another bar at some point in the afternoon, and it was
a patron known as “Boston Rick” who had driven the victim’s car , not Mr. Lunceford. Ms. S uggs testified that Petitioner did not leave with the victim, Mr. Lunceford a nd Boston Rick.

Melissa Ann Springfield Conner, Fred Lunce ford, Robert Ly

le and Jonathan Mitchell each testifi ed that Mr . Lunceford had told them about the murde r and his cooperation with the police despite the polic e’s orde

r not to discuss the case with others. Mr. Fred L unceford, Mr. Ly

le and Mr. Mitchell testified that Mr. Lunceford ha d told conflicting stories about the murder.

On this evidence, the jury found Petitioner guilty of f irst degree felony

murder, es pecially aggravated robbe

ry, theft of pr

operty valued ove

r $ 1,000, and setting fire to personal property

. III. Pos t-convic

tion Hear

ing

At the pos t-conviction hearing, Petitioner presented the testimony of Detective Alan Cha

rvis , D orothy Suggs, Debbie O’Bry

an, Randall Herdman, and his trial counsel, Edward DeWerf f. Petitioner also testified in his own behalf.

Detective Charvis testified that latent fingerprints had been rec overed from a plastic bag and
a plastic bottle of lig

hter flui d found a

t the crim

e scene but th at the fingerprints had not been identified. Detecti ve Charvis could no t recall whether he had

discussed these fingerprints with Mr. DeWerff. On cross-examination, Detective Charvis said that the Clarksville Police Department had fingerprinted Richard Roberts.

Mr. DeWerff testified next concerning his represe ntation of Petitioner during the trial. Mr. DeWerff stated that he had little personal recollection of the trial, and Petitioner’s file, alo ng with others, were de stroyed duri ng a tor nado in 19 99. He re

membere d, howeve

r, that the relation ship withPetitioner was “average,” a nd he hadno recollect ion of any ar guments or strains between himself and Petitioner. Although he couldn’t remember all of the witnesses he had interviewed, Mr. DeWerff believed he did talk with Dorothy Suggs. In addition, Mr. DeWerff said that he ha d located
a potentia l alibi witness whose na

me had bee

n provide d by

Petitioner , but the ma

n was not a

ble to provide any

useful a dmissible t

estimony . Mr. DeWe

rff said that his time sheets indicated that he had at least contacted an investigator, but he could not reme mber if one was actually

hired. Al t hough he could not specifically r

emember, Mr. DeWerff was confident that he and Petitioner had discussed Petitioner’s right to testify a t trial. Dorothy Suggs testified that

she arrived

at the Pickle Factory

the day of the mur

der around 1:30 p.m. or 2:00 p.m. and joine d the vict im, Mr. L uncefor d and Petit

ioner in d rinking . At some point, the victim indi cated th at he wa nted to g o to anothe

r bar, a nd Mr. Robe

rts volunteered to take him because the victim

was in toxicated. Th e victim, Mr. Roberts and Mr. Luncefor d left the bar together, and Petitioner stayed behind, sitting next to Ms. Suggs’ husband, Billy Joe Johnson. Ms. Suggs stated that Mr. DeWerff had not interviewed or ca lled her husband, who was now deceased,-6-

as a witness at trial. Ms. Suggs said she also knew Rosemary Devito She pard, Mr. Rober ts’ exgirlfr iend, and that Mr. Ro

berts had cut Ms. She

pard’s neck during an a

ltercat ion at some

point in their relationship. On cross-examination, Ms. Suggs admitted that her testimony at trial was subs tanti ally the s ame as h er tes timo ny at the p ost-c onvi ction hearin g.
Petitioner next took the stand and testified that both he and Mr. DeWerff had rem ained undecided

about whether Petitioner would testify until the trial began. Then, Petitioner said that Mr. DeWerff advised h imnot to testify so that the prosecution would not ge t a chanceto “chew him up”
on cross-examination. Petitioner contendsthat he sh ould have been g iven the o

pportunit y to tell the jury that he was not present when the victim was killed. Petitioner admitted, however, that he was at the church when the victim’s car was burne d. Contrary to Ms. Sug gs’ testimony , Petitione r also said that he left the Pickle Factory with the victim, Mr. Lunceford and Mr. Herdman, but said that the victim and

Mr. L uncefor d took him

back to the Pickle Factory after they dropped Mr. Herdman off at his hous e. Acco

rding to the Petitioner, the victim and Mr. Lunceford the n drove off together while Petitioner remained

at the bar. Petitioner

explained that his fingerprints were on the beer ca ns found at the cr

ime scene becau se he was the one who had bought the beer at Beech’s Market as the group rode to Mr. Herdman’s house. Two more witnesses testified to the events on the day the victim wa s killed. Ms

. O’Bry an offered little add itional inf ormation b ecause

she left t he bar be fore the victim did, although she, too, had heard the story

of Mr. Robert’s attack on Ms. Shephard. Mr. Herdman testified that the victim, Mr. Lunceford

and Petitioner gave him a ride home. They stopped at

Beach’s Market, and Petitioner got out to buy beer. When they dropped Mr. He rdman off, one of themen told Mr. Herdman that they were going to ride around in the country and drink beer.
IV. Standard of Review

A petitioner seeking post-conviction relief must es tablish his allegations by cle ar and convincing evidence. Tenn. CodeAnn. § 40-30-21 0(f) (1 997). The trial cou rt’s find ings of f act in
a post-conviction hearing are aff orded the weight of

a jury ver dict. Black v. State , 794 S.W.2d 752, 755 (Tenn. Cr

im. App. 1990), perm. to appeal denied (Tenn. 1990). Therefore, this Court may not re-wei gh or re -evalua

te these findings nor substitute its inferences for that of the trial judge unless the evidence in the record preponder ates against those findings. State v. H oneycu tt , 54 S.W.3d 762, 763 (Tenn. 2 001); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). In addition, questions concerning the credibility of witnesses a nd the weight and value given their testimony is resolved by the post-con viction c ourt, and not this Court. Id . However, this Court’s application of the law to the facts is reviewed de novo, without a presumption of correctness. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). A c laim that counsel rendered ineffective a ssistance is a mixed question of facts and law and therefore a lso subject to de novo review. Id. ; Burns , 6 S.W.3d at 461.

When a petitioner seeks post-c onvic tion relief on the basis of ineffective assistance of counsel, he must establish that counsel’s performance fell below “the range of c omp etence demanded of attorney s in criminal cases.” Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 197 5). In-7-

ad dition, he must show that counsel’s ineffective performanc e actually a dversely impa

cted hi s defense. Strickl and v. Washing ton , 466 U.S. 668, 693, 104 S. Ct. 2052, 2067, 80 L. Ed.2d 674 (1984). In other words, a petitioner must show th at there

is a rea sonable p

robabilit y th at the out

come of the proceedings would have been diff erent had i t not been for the deficiencies in counsel’s performance. Strickland, 466 U.S. at 694; 104 S. Ct. at 2068.

In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this Courtwill not second-guess counsel’s dec isions reg arding trial strategies and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The re viewing court, therefor

e, should not conclu de that a particular act or omission by c ounsel is u nreason able mer

ely because the strat egy was unsuc cessful

. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judge d from the point of time from which they we re made in

light of all the facts and circumstances at that time, and from the perspective of counsel. Strickland , 466 U.S. at 690, 104 S. Ct. at 2066.

A petitione

r must satisfy both prong s of the Strickland test before he or she may prevail on
a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). That is, a petitione r must not on ly s how that h is counsel’s perf

ormance fell belo w acce

ptable standar ds, but that such performance was prejudicial to the petitioner. Id. Failure to satisfy either prong will result in the denia l of relief. Id. Accordingly , this Court need not address one of the componen

ts if the pe

titioner f ails to establish the other. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069.
V. Ineffective Assistance of Counsel A. Jury I nstructions

Pe titioner alleges first that trial counsel rendere d ineffective assistance when he failed t o object to the trial court’s charge to the jury outlining the range of punishment for the offense s listed in the indictment. Specifically, Petitioner conte nds that the jury

instructions were imp

roper because the trial court failed to inform the jury as to the minimum number of year s that Petitioner would have to serve on his life sentence before he was eligible for parole. Secondly , Petitioner contends that trial
co unsel impro perly fa

iled to object to the trial court’s reference to life imprisonment without the possibility

of parole and death as possible punishments for first degr ee felony murder whenthe State didnot seek either punishment. Finally , Petitioner alleges that appellate counsel rende red ineffe ctive assistanc e when he

failed to raise the se issues on appea l.

At the time of Petitioner’s trial in 1996, the trial court was required to instruct the jury as to the possible p enaltiesfor eac h offens e charged and lesser-include d offenses, upon motion of either pa rt y. Tenn. Cod

e Ann. § 40 -35-201(

b)(1) ( repeal ed 1998) . If a

party request ed a charg e as to possible penaltie s, the trial

court wa s also require d to includ e in the ju ry instructi ons an ap

proximate calculation of the minimum nu mbe r of yea rs the defendant must serve before eligible for parole. Tenn. Code Ann. § 40-35-201(b)(2)(A)(i) (a mended 1998).-8-

The ma ndate that jurors be informed of the possible punishments facing a def endant reflected the public’s “desire for truth in the sentencing proce ss.” State v. King , 973 S.W.2d 586, 591 (Tenn. 1998). Assummarize d by the Tennessee Sup

reme Cour

t:
As a matter of p olicy, the legislature has decided that the sentenc ing information is relevant because jurors are better off having concrete information on these issues rather than being lef t t o speculate on their own. The rationale for permitting an instruction on the range of punishment, even though the jur y does not impose th e s en te nc e, is th at in re al it y, “jurors will consider punishment anyway and withoutdirectio n may

specula te to the possible detriment of a defendant. I f nothing else, the instruction impresses upon the jurors the consequences of a guilty verdict.”
Id., at 591-592 (quoting 11 David Ray bin, Criminal Practice and Procedu re § 30.73 (1985)). A jury instruction containing the sentencing information required by Tenn. Code Ann . § 40-35- 201(b) is both relevant and constitutional. State v. Ni chols , 24 S.W.3d 297, 301 (Tenn. 2000).

In the case sub judice , the tria l court’s c harge to the jury on first degree felony

murder concluded with the f

ollowing statemen t:
The punishmen

t for [firs t degree felony

murder] islife im

priso nment, life imprisonmentwithout the possibility of parole, or death by electrocution. The State, however, is not seeking the death penalty or life impr isonment w ithout the p ossibility of parole and, therefore, should you return a verdict of guilt y, t his court will impose a life sentence.

Petitioner argue s that this i nstructio n impermis sibly leads t he ju ry t o believe that life imprisonmentis a s ignif

icantly less sente

nce than life witho

ut the poss ibility

of parol e, especially since the trial

court did not inform the

jury that Petiti oner would actua lly h ave to se

rve at le ast twenty-five y

ears before he was eligible for parole. See Tenn. Code Ann. § 39-13-204(e)(2).

Th e post-conviction court concluded that the jury instruction as given provided re levan t information to the jurors, and that people areaware that the death penalty is a possible penalty for first degre e murder

in Tenne ssee. The post-c onviction court found that the instru ction ac curately informedthe jury as to the consequences of a guilty verdict and relieved the jurors of any concerns or apprehe nsion as to

the possib ility

of a death sentence in the case befor e them. We agree with the post-conviction court’s findings that Petitioner has failed to show that trial counsel orappella

te counsel’s conduct was either deficient or prejudicial to Petitioner in failing to object to this jury instruction. Petitioner is not entitled to relief on this issue.

The trial court’s charge to the jury also defined the punishment for first degree f elony murder
as “a sentence of life in the state p enitentiary,” a nd did not include the minimum number of years that must be served before Petitioner was eligible for p ar ole. Petitioner contends that his trial counsel rendered ineffective assistance wh en h e failed to object to the trial court’s omission of-9-

informa tion c oncerning Petitioner’s parole eligibility . Relying upon the Te nnessee Supreme Court’s holding in Dean v. State , 59 S.W.3d 663 (Tenn. 2001), Petitioner submits that trial counsel’s failure to object to the trial court’s instructions was prejudicial error. Petitioner

also alle ges tha

t appella te counsel rendered

ine ffective assistance when he failed to ra ise the appropriateness of this jury instructi on on appe al.

In Dean, the trial court erroneously informed the jury that the r ange of punishment for attempted second degree murder w as three to ten years w hen, in fact, the range

was eig ht to thirty ye ars. After the jury

returned a guilty

verdict against the

defenda nt, the trial

court se ntenced him to fifteen ye ars as a

Range I I mult iple offe nder, a s entence

in excess of that contemplated by the jury during its deliberations. The court concluded that counsel’s f ailure to object to the erroneous jury instructi ons, or preserve the issue for appe al, w as not within the range of competence r equired of attorneys in criminal ca ses under the standards set forth in Baxter and Strickland

. Id. at 668. The jury charge, as given, se

t the range of punishment for attempted second degree murder the same as the range of punishment

for ag grava

ted assa ult, a lesser-included offense, and nea rly the same for voluntar y manslaughter. Based upon the fac ts before it, the court in Dean concluded that th e information furnishe d to the jury as to the potential punishment for attempted second degree murder was so sub stantiall

y in accura

te that it ma

y ve ry well have

affec ted the ju

ry ’s delibe

rations w hen it considered the charged of fense and the lesser-included offense s. Id. at 669.

The jury charg e challe

nged by Petitioner

in the case sub judice is clearly distinguisha ble from the jury char

ge reviewed in Dean. Unlike Dean , the jury convicted Petitioner of first degree felony murder, and the trial court sentenced him to life imprisonm ent. L ife impri sonment is t

he lowes t sentence available to one convicted of first degre e murder. Tenn. Code Ann. § 39-13-202(c). Therefore, to show he was prejudiced by the jury instructions, Petitioner would hav e to demon strate that the jury would hav e acquit

ted him of f

irst degree felony

murder had it been provided the jury instructions now requ ested by Petitioner . Based

on the re cord, it

is highly improbable that the jury would have opted for acquittal rather than conviction. Ac cordingly , whether or not in this instance the trial court’s charge did not follow the statutory requirements mandated by Tenn. C ode An n. § 40-35-201(b) in effect at the time of Petitioner ’s trial, Petitioner has not de

monstrated that the

re is
a reasona ble probability that a clea

rer jury instructi on would ha

ve led to a differe nt result in the tria

l. Petitioner has also not demons trated th at he wa s prejudi ced by the failu re of his appella te counsel to raise the appropriateness of this jury instruction on appeal. Petitioner, ther efore, is not entitled to relief on this issue.

Fi na ll y, Petitioner

contendsthat tria

l counsel provid ed in effective assistance because he failedto object to the trial court’s jury c harge on fi r st degree felony murder which omitted instructions as t o lesser -included offenses. Correspondingly , Petitioner alleges appellate counsel provedineffe ctive whe

n he fail ed to appeal t

his issue. Petitioner

did not ra

ise this iss ue in his Petition for Post-Conviction Relief, and we cannot find any evidence in the transcript of the evidentiary

hearing that the issue was presented to the post-conviction court. I ssues not raisedin a petition for post-conviction relief cannot be raised for the first time

on appea l. See Tenn. Code Ann. § 40-30-210(f). Accordingly , this issue is waived.-10- B. Prosecutorial Misconduct

Petitioner next a rgues that his counsel failed to provide effective assistance of counsel because trial cou nsel did no t object to , and app ellate c ounsel did not appea

l, certa in remarks made by the prosecution dur

ing clos ing arg

ument. Whe

n descri bing Ms. O ’Bry an’s inf

luence o ver Ms

. Suggs’ testimony , Petiti o ner’s main alibi witness, the prosecutor compared Ms. O’B ryan to the coyote of I

ndian folklore.

Ladies and gentlem en of the jur y, t he last a rea tha t the State

is going to addressis the credibility

of Ms

. Suggs. In we stern Indian lore from the Cana dian border to the Mexican border, trickster runs through the methodology of Western India [sic], trickster is Coyote. Coyote lies to the Gods and lies to the Indians, to the mortals , and causes confusion between the Gods and the mortals and thing s are created and thing s are destroy ed and people die and Gods fall from the Heave ns because of the chaos created by

the coyote, the trickste

r. The state would submit that ther e are some c hara cter istic s in [si c] tri ckste

r in Mr s. O’ Brie

n [sic ].

Alth ough a great

deal of latitude is extended to both the prosecution and the defense as they present their views to th

e jury , this latitu de is not without limitation. Russell v . State , 532 S.W.2d 268, 271 (Ten

n. 1976). Accord

ingly , counsels’ arg

uments must

be temperate, based on the evidence presented at trial and pertinent to the issues raised. Id.; Smit h v. State , 527 S.W.2d 737, 739 (Tenn. 1975). To r is e to the le

vel of pr osecutor ial misconduct, the

comment c omplaine d of must be so impropert hat the comment “could have affected the verdict to the prejudice of the defend ant. ” Herringto n v. State , 385 S.W.2d 758 (Tenn. 1965).

The factors that are relevant in dete rmining if a particular comment is prejudicial include: (1) the conduct complained of, viewed in light of the facts and circumstances of the case ; (2) the curative measures undertaken by the Court and prosecutor; (3) the intentof the prosecutor in making the improper statement; (4) the cumulative effect of the improper conduct

and any other

errors in the record; and (5) the relative strength or we akness of the case. State v. Coker , 911 S.W.2d 357, 369 (Tenn. Crim. App. 1995), perm. to app. denied (Tenn. 1995), overrule d in part by State v. We st , 19 S.W.3d 753 (Tenn. 2000)(quoting Judge v . State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

As a general propo siti on, t he pro secut or sho uld re frain from n ame cal ling or usin g derogatory
remar ks. State v. Bane , 57 S.W.3d 41 1, 425 (Te nn. 2001) ; State v. Bates , 804 S.W.2d 868, 881 (Tenn. 1991). Al

though th e prosec utor may not expres s his personal opinion as to the credibility of the witnesses, he may dr

aw inferences concerning

their testimony which are supported by

the record. State v. Beasley , 536 S.W.2d 3 28, 330 (T enn. 1976 ); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1979), cert. denied (Tenn. 1979).

It is not impro

per for a prosec utor to suggest to the jury that Petitioner’s alibi witnesses lied if this inference is supported by the record. Id. Mr. Lunceford testified at Petitioner’s trial that he and Petitioner left the Pickle Factory with the victim shortly before the murder. Ms. O’Bry an and-11-

Ms. Suggs b oth said that Petitioner did not leave the bar on October 28 for more than a few minutes at a time. Only one ve

rsion of the events leading up to the victim’s murder is accur ate.
At trial, Ms. O’Bry

an testif ied t hat she was a bartender at the Pickle Fa ctory in 1994 and arrived for work at 8:00 a.m. On the day of the murder, Ms. O’Bry an said that the victim, Mr. Lunceford, Petitioner, Dorothy Suggs and her husband were all present

at the Pickle Factory

. She could not remember

specifically w

hether Mr. Herdman

or Mr. Roberts had been in the bar, but she thought she had seenMs . S he pa rd at so me po in t. Du ri ng th e d ay, Petitioner left periodically but wa s gone only five or ten minutes at a time. At 2:00 p.m., Ms. O’Bry an left to buy cig arettes for the bar and returned approximately f orty-five minutes later. Petitioner was still in the bar when she got back from her errands, and he was still there when she got off work at 8:00 p.m. She could not remember, however , when the

victim had

left.

On cross-examination, the prosecution focused primarily on questioning the accuracy of Ms. O’Bry an’s memory of the e vents on October

28. Ms. O’Br

ya n admitted

that Petiti oner, Ms. Suggs, and Mr. Lunceford

were regular

patrons, and Petitioner and Mr. Lunce ford were drinking a g

reat deal in 1994. Often, Petitioner and Mr. Luncef ord would arrive at the bar at 8:00 a.m. when she opened up. The v i ctim was n ot as frequent a vi sitor to the bar as Pe

titioner a nd Mr. L uncefor d. Ms. O’Bry an agreed

that it was difficul

t to separ ate one d ay

from ano ther. She

was ver y f amiliar w ith the regulars and often sat down to share a drink and conversation while she was working. On October 28, Ms. O’Bry an testified that she had shared four beers with the r egulars after she returned from her cigarette run.

Ms. Suggs testified at trial that she was working part-time at the Pickle Factory in 1994, but she had not learned about the victim’s death, whom she knew only as “Ski,” until after the Petitioner
was arrested. When Ms. Suggs asked when the mur der occurred, Ms. O’Bry

an reminded her

it was the day that

they were

all sitting together at a big table, and the victim was buying rounds of beer. Ms. Suggs, however, maintained that her r ecollections of the day ’s details we re her o wn, not Ms. O’Bry an’s.

The record indicates that both versions of the ev ents of O ctober 2 8 were f ully and ably prese nted to the j ury , and the j ury obviously

credite d the testimony

of Mr. L uncefor d. The pos tconviction court noted that the prosecutor’s allegory probably did not have a

great deal of meaning to most people and foundthat Petitioner had not shown that h e wasprej udic ed by

the c ommen

t. We agree that Petitioner has not shown by clear and convincing evidence that he was prejudiced

by trial counsel’s failure

to object

to the com

ments or a

ppellate counsel’s failure to appeal the appropriateness of the comments. Petitioner is not entitled to relief on this issue.

C. Failure to Adequately Investigate Witnesses

Petitioner alleges that trial counsel failed to adequately interview and investigate witnesses whose te st im on y, Petitioner contends, could have strengthened Petitioner’s alibi and established the presenceof another potential suspect, Richard Roberts. At the post-conviction hearing, Petitioner-12-

presented th re e w it ne ss es . B ot h M s. Su ggs ’ a nd Ms . O ’B rya n’ s t es ti mo ny at the post-conviction he arin g was substantially the same a s that at trial. Ms. Suggs did provide testimony that her husband, Billy Joe Johnson, had talked with Petitioner after the victim had left with Mr. L unceford and Mr. Roberts. Mr. Johnson, no w deceased, ha d not been called a s a witnes s at trial , and Ms. Suggs believed that

Mr. Johnson could have corroborated her testimony that Petitioner had not

left the bar with the victim. Both women said that Petitioner’s trial counsel had not asked them

about the alterca

tion between Ms. She

pard and Mr. Rober

ts in which Mr. Roberts had slit Ms. Shepard’s throat.

Randal l Herdman n ext testified on Petitioner’s behalf, but his testimony directly contradicted Ms. Suggs’ recollections. Mr. Herdman’s testimony e ssentially corrobora ted Petitioner’s testimony at the post-conviction hearing that Petitioner had left the bar in the company of t

he victim, Mr. Lunceford and Mr. Herdman.

In order to

support his claim thattrial counsel failed to call certain witnesses to Petitioner’s detrimen t, Petitioner

must show, through the witnesses’ testimony at the evidentiary

hearing, that they would have testified favorably and provided critical evidence in support of Petitioner’s defense. Black , 794 S.W.2d at 757. Both Ms. Suggs and Ms. O’Bryan testified at trial and provided no new information other than informat ion conce rning a n alleg ed alter

cation be tween Mr . Roberts and Ms. Sh epard in whic h Mr. Roberts had inflicted the same ty pe of injury on Ms. Shepard a s had been inflicted on the victim. Neither one testified when the altercation took place, and Petitioner did not calleither Mr . Roberts o

r Ms. Shepa

rd to the s t and. D etective Charvis testified that none of Mr. Roberts’ finger

prints mat ched thos e found o n items at t he crime scene. Moreover, neither Petitioner
nor Mr. Herdman identified Mr. Roberts as a member of the group that left the Pickle

Factor y w ith the victim on the afternoon of the murder. Petitione r’s tri al counse l did not ca

ll Mr. Johnson

to te st if y, b ut it ap pe ar s t ha t h is te st im on y wo ul d h av e b ee n c um ul at iv e t o M s. Su ggs ’ t es ti mo ny.
Fi na ll y, Mr. Herd

man’s tes timony

was far from exculpatory . In f

act, his description of the events of Octob er 28 ac tually reinfor ced the St ate’s case. Mr. Herd man’s testimony placed Petitioner in the car with the victim immediately pr ior to the murder, and Mr. Herdman testified that Petitioner, Mr. Lunc eford a

nd the vic tim drove o ff toge ther in the victim’s car to ride around in the country and drink.

Whether

to call a particul ar witness to the stand is a strategic decision made by counsel amidst the fac ts and circ umstances at the time. Based upon a review of the record, Petitioner has failedto show by clear

and convincing evidence that he wa s prejudiced or counsel was deficient for failing to call Mr. Johnson or Mr. Herdman to the stand and failing to investigate Mr. Roberts more th or ou gh ly. Petitioner has also f a iled to sustain his burden of proof that appellate counsel was deficient in notappealing trial counsel’s failure to ca ll these witnesses to the stand or investigate Mr. Roberts further. Defendant is not entitled to relief on this issue.-13- D. Right to Testify at Tr

ial

Petitioner allege s that tria

l counsel failed to advise him adequa

tely of his rig ht to testif

y in his own defense at trial and failed to insure that Petitioner’s waiver of his ri gh t to testify was knowing and informed. Petitioner said that both he andtrial counsel were undecided as to whether Petitioner would take the stand until the trial date. While they we re in the courtro om, trial counsel advised Petitioner

not to testi fy

because the Sta te would “che w him up” if he took the stand. Petitioner admitted that he agreed with t ria l counsel ’s advic e at the time, but sa id that he did so because he had not had a chanc e to review hi s case file. In view of Mr. Lunceford’s a

nd Mr. Nelson’s incriminating testimony, Petitioner argue s that the j ury

should hav e had an

opportuni

ty to hear his side of the story. Trial c ounsel testified that he could not remember what he and Petitioner had specifically discusse d concerning Petitioner’s decision to testify , only that they had discussed the issue.

A criminal defendant has a fundamental con s titutional right to testify in his or her own behalf, and only the defenda ntcan personally

waive the right to testify

. Momon v. State , 18 S.W.3d 152, 161 (Tenn. 1999 ). A right that is fundamental and personal to the defenda nt may only

be waivedif there is evidence in the r ecord s upporting an intentional and knowing waiver, and suc h waiver ma y not be “pre sumed from a silent record.” Id . Although the safeguards established i n Momon were not in effect at the time of Petitioner’s trial, the post-conviction court found that Petitioner had bee n adequa tely advised b y hi s trial counsel of his right to testify , and that Petitioner had knowingly a

greed with counsel’s advice that taki ng the stand wa s not in Petit ioner’s best interest

. Based u

pon a rev iew of the record , we find

that the e vidence does not pr

eponder ate ag ainst the post- convicti on court’ s finding , and this i ssue is wit hout merit

. E. Failure to Appeal Consecutive Sentencing

At the conclusion of Petitioner’s post-conviction hearing, the post-co nvic tion court found that Petitioner had received ineffective assistance of counsel on appeal because appellate counsel (1) didnot appeal the appropriateness of the trial court’s order of consecutive sentencing , and (2) failed to reques t a tra nscri pt of t he sen tenci ng heari ng. The post-conviction court concluded that “Petitioner

should be allowed appellate reviewof the imposition of consecutive sentences upon the appeal of this matter.” However, the post-conviction court did not make a spe cific finding that Petitioner was pre judiced i n that the result of the appeal would have been diffe rent wereit not for appella te counsel’ s deficie

nt conduc t. The State

appealsthe gra

nt of post- convicti on relief on this issue alo ne, argu ing that Petitioner has not shown he was prejudiced by his appellate counsel’s failure to raise t

he appro priateness of co nsecutiv e se ntencing on appeal, even if his conduct were found to be ineffective.

We note at the outset that it appears that the post-conviction court’s grant of relief is phrased
as an order for

a delayed appeal on the issue of consecutive sentencing . However, Petitioner has already be en granted a direct appe al and thus is not entitled to a delayed a ppeal. The Post

Conviction Procedure Act only authorizes a delayed appeal when a petitione r has bee n “denie d his-14-

right to an appeal from his original conviction in violation of the Constitution of the United States
or the Constitution of Tennessee.” Tenn. Code Ann. § 40-30-213. The post-conviction court under the appropriate circumstances should have order ed a new sentencing hear

ing when it determined that Petitioner was pre judiced b y the defic ient cond uct of his appellate counsel in preserving sentencing issues on appeal. Nonetheless, after a thoroug h review of the record, we agree with the State. Becau se Petitioner has not demonstrated that there is a reasonable probability that the result on appeal would have resulted in a different c onclusion had appellate counsel filed a transcript of the sentencing hearing, we

need not address whether appellate counse l’s assistance was deficient.

A criminal defenda

nt has a c onstitution al righ t to counsel on his first appeal, and this right
necessa rily includes the right to effective assistance of counsel. Douglas v . California , 372 U.S. 353, 83 S. Ct. 814, 9 L . Ed.2d 811 (1963); Cooper v. State , 849 S.W.2d 744, 746 ( Tenn. 199 3). The s ame principles applica

ble to dec iding the

effec tiveness of trial c ounsel ap ply to appell ate counsel

. Id. Thus, Petitioner’s appellate counsel must not only have been ineffec tive in hi s performance, Petitioner must also ha

ve been prejudic ed by

appella te counsel’s deficient conduct. Strickland , 466 U.S. at 693. To demonstr

ate he was prejudiced by

appellate counsel’s actions, Petitioner must show that there is a reasona ble proba bility that the result on appeal would have been differe nt but for the
errors of counse

l. Dean , 59 S.W.2d at 668. “A r easonab le proba

bility is a proba

bility sufficie nt to undermine confidence in the outcome.” Strickland , 466 U.S . at 694, 104 S. Ct. at 2067. A trial court’s findings of fact supporting a claim of ineffe ctivene ss of counse l are pr esumed c orrect

unless the evidence preponderates ag ainst such find ings. Fields , 40 S.W.3d at 458. “However, a trial court’s conc l usions of law–such as whether counsel’s performa nce was deficient or whether that deficiency

was prejudicial–are reviewed under a purely

de novo standard, with no presumption of correctness given to the trial court’s c onclusions.” Id.

At the sentencing hearing, the trial court imposed a sentence of twenty -five ye ars for especi ally aggravated robbe

ry, four y ears for theft of property and two yea

rs for setting fire

t o personal propert y. T he trial c ourt orde red the r obbery and setting fire

to person al prope

rty convictions to run con secutive ly w ith Petitioner ’s life se ntence f or first degree felony

murder, and the sentence for

theft to r un concu rrently with the robbery c onviction, for an effective sentence of life imprisonme

nt plus twe

nty -seven y

ears. In making this determination, the trial cour t found that the preponderance of the evidence showed that Petitioner

i s an offender whose record of criminal
a ctivity is extensive. Tenn. Code Ann. § 40-35-115(b)(2). The trial court also noted t hat i t considered

the sentencing principles in Tenn. Code Ann. §§ 40-35-102, -103, and -104 in making its determination that consecutive sentencing was appropr iate.

Petitioner argues that his criminal record does not rise to the leve l of extensive crimin al activity contemplated by Te

nn Code Ann. § 35-115 (b)(2 ) becau se his prio r convic tions cons ist primaril y of misdemeanors and traffic offenses. Petitioner a lso p resented test

imony at the sentencing hearing that he was employe d at the time of

his arre st, paid child support for his three children and provided assistanc e to his eld

erly parents

.-15-

This Court h as now ha

d the oppo

rtunity to review the transcript of the sentencing hearin g. According to the record, Petitioner had nineteen misdemeanor convictions between 1978 and 1993 involving charges of public intoxication, marijuana possession, driving while under the influence, driving with a revoked license, malicious mischief, evading a rrest and traffic offenses. In addition, Petitioner was convicted of

burgla ry , a Class D felony , in 1983 for which he received a three -year sentence. The trial court suspended Petitioner’s sentence, and he was placed on probation. Petitioner’s probation was later revoked, and he wa s ordered to serve the balance of his sente nce. In 1992, Petitioner was convicted of theft of prope rty valued be

tween $5 00 and $1, 000, a Cla ss E fe lo ny, and sente

nced to two years. The

trial court sus pended Pe

titioner’ s sentenc e and pla ced him on probation.

If a defenda

nt is convicted of

more than one criminal offense, consecutive sentencing may be imposed at the discretion of the trial court if one or more of the criteria in Tenn. Code Ann. § 40- 35-115(b) is present. As pertinent to this case, a defe nd ant “who se reco rd of cr iminal ac tivity

is
ex tensive” is an appropriate candidate for consec utive sentencing. Tenn. Code Ann. § 40-35- 115(b)(2). The tria

l court mus t also con sider the gener al princ iples of se

ntencing in determining the length of the sentence, and the se ntence m ust be “justly deserved in relation to the seriousness of the offense.” State v. Lane , 3 S.W.3d 456, 460 (Tenn. 1999); Tenn. Code Ann. § 40-35-102(1).

Based on a careful review of the record, we find that Petitioner has failed to show that he was prejudiced

by appellate c ounsel’s failure to request a transcript of the sentenc ing hearing and raise the issue of consecutive sentencing on appea l. Specifically, Petitioner hasfailed to show that there is a reaso nable

probability that the

outcome of his appeal would have been differe nt had a transcript of the sentencing hearing been provided this Court. Petitioner’s prior criminal record, consisting of nineteen misdemea

nors, two felonie s and one failed probation, clearly supports the sentencing court’s finding that Petitioner has an extensive criminal record. See State v. Pettus , 986 S.W.2d 540, 545 (T enn. 1999)(thedefendant’s record of two thefts, an unlaw ful weapons conviction, contributing to the delinquency of

a minor and driving on a revoked license was sufficient to support consecutive
se ntences). Further

more, the post-con viction c ourt did no t make a f inding th at Petiti oner wa s prejudiced, that is, the result of the appeal would have been differ ent. Accordingly , we reverse the judgment of the post-conviction court as to this issue.
CONCLUSION

Based upon a careful review of the rec ord, we affirm the trialcourt’s judgment as to all issues oth er than consecutive sentencing and reve rse the trial court’s judgment that Petitioner receive d ineff ectiv e assi stanc e of cou nsel a s to t he iss ue of co nsecu tive s enten cing.

___________________________________ THOMAS T. WOODALL , JUDGE