IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 3, 2011

DERRICK SUTTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-26776 John P. Colton, Jr., Judge

No. W2010-01413-CCA-R3-PC - Filed July 19, 2011

The Petitioner, Derrick Sutton, appeals as of right from the Shelby County Criminal Court’s

denial of his petition for post-conviction relief. The Petitioner was convicted of especially

aggravated robbery and sentenced as a violent offender to 21 years in the Tennessee

Department of Correction. The Petitioner contends that the trial court erred in failing to

charge facilitation of especially aggravated robbery as a lesser-included offense and that the

trial court erred in defining the term knowingly in response to a question from the jury. The

Petitioner also challenges the performance of trial and appellate counsel. Following our

review, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE

OGLE, J., joined. DAVID H. WELLES, J., not participating.

Joseph A. McClusky (on appeal) and William D. Massey (at trial), Memphis, Tennessee, for

the appellant, Derrick Sutton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; William L. Gibbons, District Attorney General; and David Michael Zak, Jr.,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On direct appeal, this court affirmed the Petitioner’s especially aggravated robbery

conviction. State v. CarlJohnson and Derrick Sutton, No. W2000-00278-CCA-R3-CD, 2001

WL 1335110 (Tenn. Crim. App. Apr. 4, 2001). Although the facts of the Petitioner’s case
have already been discussed in this court’s opinion affirming his conviction, we will provide

the following factual summary to establish context for the issues before this court.

On August 29, 1998, Treasy Alsobrook spoke with the victim, who gave her his

beeper number. Ms. Alsobrook told Toshia Rainey that she had spoken to the victim that

afternoon and was planning to meet him later that night. While at the Petitioner’s house, Ms.

Alsobrook, Ms. Rainey, the Petitioner, and Carl Johnson devised a plan to rob the victim

when the victim met with Ms. Alsobrook that night. In furtherance of this plan, Ms.

Alsobrook contacted the victim. When she spoke with the victim, she asked whether he

wanted to drive to a restaurant and get something to eat. The victim agreed. When the

victim arrived at Ms. Alsobrook’s house, she got into his car. As the victim was driving

down the street, she told him to stop because she noticed an unfamiliar car in her backyard.

The victim complied, and Ms. Alsobrook got out of the car, presumably to investigate the

unidentified car. As she was returning to the victim’s car, the Petitioner came up behind her,

put a gun to her head, and ordered her to sit on the curb.

The Petitioner then approached the victim’s car and opened the front passenger’s side

door. The Petitioner pointed a handgun at the victim and ordered the victim to “drop it off.”

The victim pushed the handgun away and gave the Petitioner $690. The Petitioner told the

victim to pull his shirt over his head before he got into the car on the front passenger’s side.

At that time, Mr. Johnson approached the car and got into the backseat behind the victim.

The Petitioner looked in the glove compartment of the car, while Mr. Johnson hit the victim

in the back of the head, asking the victim to call someone so that he could obtain more

money. The victim eventually jumped out of the car and ran. As the victim was running, Mr.

Johnson shot at the victim, striking the victim in the left arm and the left chest area. The

victim survived and recovered from his injuries after two or three months.

The Petitioner and Mr. Johnson were charged with criminal attempt to commit first

degree murder and especially aggravated robbery. Following the presentation of the

evidence, the jury submitted the following question to the court:

We would like to have a clarification on knowingly as defined in second

degree murder. Does knowingly infer intended desire to murder? Does

knowingly mean that the person shooting the gun took time to think about the

consequences before he shot the gun?

(emphasis added). The trial court responded to the question by stating,

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A person acts knowingly if that person acts with an awareness, if his conduct

is of a particular nature; or a person acts knowingly if that person acts with an

awareness that a particular circumstance exists.

The jury ultimately acquitted the Petitioner and Mr. Johnson of criminal attempt to

commit first degree murder, failed to return a verdict as to the lesser-included offense of

criminal attempt to commit second degree murder, and convicted the Petitioner and Mr.

Johnson of especially aggravated robbery. Id. at *13. After the Petitioner’s conviction was

affirmed on appeal, the Petitioner filed a timely petition for post-conviction relief on

September 17, 2002. Following the filing of two amended petitions, the post-conviction

court held a hearing on January 21, 2010.

At the post-conviction hearing, the Petitioner testified that he did notshoot the victim.

He stated that he wanted the trial court to charge the jury on all possible lesser-included

offenses for his indicted charge of especially aggravated robbery and that he believed that

the trial court failed to charge the jury as required by law. He said that trial counsel did not

ask the trial court for an instruction on the lesser-included offense of facilitation to commit

especially aggravated robbery. He stated that the trial court erred in defining knowingly in

response to a question from the jury and that trial counsel did not object to the erroneous

instruction.

Appellate counsel testified that the issue of the lesser-included offense was not raised

in the motion for new trial or on appeal. She explained that the leading lesser-included

offense case at the time, State v. Trusty, 919 S.W.2d 305, 311 (Tenn. 1996), was overruled

by State v. Burns, 6 S.W.3d 453 (Tenn. 1999) as she was preparing the Petitioner’s appeal.

She said that the Burns decision was discussed at length in her office. She stated that she did

not cite Burns in her brief because she thought such a claim lacked merit when there “was

overwhelming evidence of [the Petitioner’s] guilt.” She stated that she did not believe she

could raise the lesser-included offense issue when the Petitioner “was fully part of [the]

robbery.” She stated that according to her understanding of criminal responsibility, the

appellate court would have rejected that argument.

Trial counsel testified that he had no “independent recollection” of which lesserincluded offenses he asked the trial court to include in the jury charge. He stated that he

generally asked that all lesser-included offenses be charged but that the trial court did not

instruct the jury on facilitation of either offense in the Petitioner’s case. On crossexamination, he stated that he followed the law as he understood it on the day of trial and that

he did not know of anything he could have done differently on that day.

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Following the evidentiary hearing, the post-conviction court denied relief in a written

order. The post-conviction court stated that the law at the time of the Petitioner’s trial

provided that the trial court was only required to instruct the jury on “lesser-included offenses

that had a factual basis” and that “there was no duty for the attorney to request those

instructions.” The post-conviction court found that the trial court did not err in deciding to

omit a charge of facilitation “because there was no factual basis in the evidence for the

instruction of facilitation of especially aggravated robbery.” The post-conviction court

further found that the Petitioner had confessed his involvement as a gunman in the robbery

and that the Petitioner had failed to establish prejudice resulting from the exclusion of the

lesser-included offense.

As to the second issue, the post-conviction court clarified that the Petitioner had

alleged that in response to the jury question regarding the offense of second degree murder,

the trial court erroneously defined the term knowingly by omitting the requirement that the

person be aware that their conduct was “reasonably certain to cause the result.” The

Petitioner alleged that the erroneous definition affected his conviction of especially

aggravated robbery because the jury was told to consider the attempted murder offenses

before considering any other offenses. The post-conviction court ultimately denied the

Petitioner’s claim that the definition impacted the Petitioner’s conviction of especially

aggravated robbery. The post-conviction court reasoned that the reasonably certain language

was not necessary because the crime of especially aggravated robbery was a conduct-based

offense, as opposed to a result-based offense. Relative to the especially aggravated robbery

offense, the post-conviction court found that the definition of knowingly given in response

to the jury’s question “did not effectively lessen the burden of the State.”

Following the post-conviction court’s ruling, the Petitioner filed a motion to

reconsider the case on June 2, 2010 in light of the Tennessee Supreme Court’s decision in

State v. Brown, 311 S.W.3d 422 (Tenn. 2010). The court held a hearing on the motion to

reconsider on June 4, 2010, in which the court instructed the parties that it would have an

order ruling on the matter by July 26, 2010. However, the Petitioner filed a notice of appeal

on June 23, 2010, thereby removing the post-conviction court’s jurisdiction. State v.

Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). Once the notice of appeal was filed, “the

post-conviction court lost jurisdiction to rule upon the [P]etitioner’s motion to reconsider”

because the motion was not “one of those specified in Rule 4 of the Tennessee Rules of

Appellate Procedure.” Jason Settles v. State, No. W2008-00370-CCA-R3-PC, 2009 WL

1026006 (Tenn. Crim. App. Apr. 15, 2009).

ANALYSIS

I. Trial court errors

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The Petitioner contends that pursuant to Brown, the trial court should have charged

facilitation as a lesser-included offense of especially aggravated robbery. The Petitioner also

contends that the trial court erred in defining the term knowingly when the jury asked the trial

court to define the term as it related to second degree murder. The State responds that these

issues are waived because the Petitioner failed to raise them on direct appeal.

The Petitioner did not raise these issues on direct appeal. “There is a rebuttable

presumption that a ground for relief not raised before a court of competent jurisdiction in

which the ground could have been presented is waived.” Tenn. Code Ann. § 40-30-110(f).

In determining whether an issue is waived in a post-conviction proceeding, the Tennessee

Code provides,

(g) A ground for relief is waived if the petitioner personally or

through an attorney failed to present it for determination in any

proceeding before a court of competent jurisdiction in which the

ground could have been presented unless:

(1) The claim for relief is based upon a

constitutional right not recognized as existing at

the time of trial if either the federal or state

constitution requires retroactive application of

that right; or

(2) The failure to present the ground was the

result of state action in violation of the federal or

state constitution.

Tenn. Code Ann § 40-30-106(g). Following our review, we conclude that the special

circumstances provided in Tenn. Code Ann. § 40-30-106(g)(1)-(2) do not apply in this case;

therefore, the issues are waived. However, our conclusion on this issue does not preclude

us from considering the Petitioner’s claim that counsel was ineffective for failing to object

at trial or raise these issues on direct appeal.

II. Ineffective assistance of counsel

The burden in a post-conviction proceeding is on the petitioner to prove the factual

allegations to support his grounds for relief by clear and convincing evidence. Tenn. Code

Ann. § 40-30-110(f); See Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). If the

petitioner proves his allegations by clear and convincing evidence, the trial court must then

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determine whether trial counsel was ineffective according to Strickland v. Washington, 466

U.S. 668, 687 (1984). Dellinger, 279 S.W.3d at 293-94. On appeal, we are bound by the

trial court’s findings of fact unless we conclude that the evidence in the record preponderates

against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they

relate to mixed questions of law and fact, we review the trial court’s conclusions as to

whether counsel’s performance was deficient and whether that deficiency was prejudicial

under a de novo standard with no presumption of correctness. Id. at 457.

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,

466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy

either prong results in the denial of relief. Strickland, 466 U.S. at 697. In other words, a

showing that counsel’s performance falls below a reasonable standard is not enough; rather,

the petitioner must also show that “there is a reasonable probability” that, but for the

substandard performance, “the result of the proceeding would have been different.” Id. at

694. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. The Strickland standard has been applied to the right to counsel under article

I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.

1989).

In determining whether trial counsel’s performance was deficient, this court has held

that a “petitioner is not entitled to the benefit of hindsight, may not second-guess a

reasonably based trial strategy by his counsel, and cannot criticize a sound, but unsuccessful,

tactical decision made during the course of the proceedings.” Adkins v. State, 911 S.W.2d

334, 347 (Tenn. Crim. App. 1994). “[D]eference to tactical choices only applies if the

choices are informed ones based upon adequate preparation.” Cooper v. State, 847 S.W.2d

521, 528 (Tenn. Crim. App. 1992). An attorney’s performance must be measured against the

general standard of whether the services rendered were “within the range of competence

demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975).

In determining whether appellate counsel’s failure to raise an issue on appeal

constitutes ineffective assistance of counsel, our supreme court has held that “unless the

omitted issue has some merit, the petitioner suffers no prejudice from appellate counsel’s

failure to raise the issue on appeal. When an omitted issue is without merit, the petitioner

cannot prevail on an ineffective assistance of counsel claim.” Carpenter v. State, 126 S.W.3d

879, 887-88 (Tenn. 2004) (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir.

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1993)). “Generally, the determination of which issues to present on appeal is a matter which

addresses itself to the professional judgment and sound discretion of appellate counsel” as

these are “tactical and strategic choices,” which should not be second-guessed. Cooper v.

State, 849 S.W.2d 744, 747 (Tenn. 1993).

A. Lesser-included offenses

The Petitioner contends that trial counsel was ineffective for failing to object to the

trial court’s failure to charge facilitation of especially aggravated robbery and that appellate

counsel failed to raise and preserve the issue. The State responds that the Petitioner has

failed to establish that trial counsel was ineffective because it was the trial court’s duty to

charge the jury as required by law regardless of any requests by trial counsel. The State also

responds that the Petitioner has failed to prove prejudice when the evidence against him was

overwhelming. The State further responds that the Petitioner has failed to establish that

appellate counsel was ineffective because appellate counsel believed that the issue lacked

merit and because the Petitioner has “failed to prove that he would have succeeded on this

issue had it been raised on direct appeal.”

Our review of the record reveals that trial counsel did not object to the trial court’s

failure to charge facilitation and that appellate counsel did not raise the issue on appeal. In

order to prevail on this claim, the Petitioner must prove that the trial court should have

charged facilitation of especially aggravated robbery and that trial counsel’s failure to object

and appellate counsel’s failure to raise the issue on appeal was prejudicial to his case.

There is no dispute in this case as to whether facilitation to commit especially

aggravated robbery is a lesser-included offense of especially aggravated robbery. In

determining whether the trial court erred in omitting the instruction in this case, we must

examine the law existing at the time of the Petitioner’s trial. Wiley v. State, 183 S.W.3d 317,

328 (Tenn. 2006). According to the case law established at the time of the Petitioner’s trial,

the trial court was required to instruct the jury “on all lesser offenses necessarily included in

the offense charged in the indictment unless there [wa]s no proof in the record which would

support the instruction.” Trusty, 919 S.W.2d at 311, overruled byBurns, 6 S.W.3d at 468-69.

“[B]efore instructing a jury on a lesser offense, the trial court must determine whether the

evidence, when viewed in the light most favorable to the defendant’s theory of the case,

would justify a jury verdict in accord with the defendant’s theory, and would permit a

rational trier of fact to find the defendant guilty of the lesser offense and not guilty of the

greater offense.” State v. Elder, 982 S.W.2d 871, 877 (Tenn. Crim. App. 1998).

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A person may be convicted of facilitation “if, knowing that another intends to commit

a specific felony, but without the intent required for the criminal responsibility under § 39-

11-402(2), the person knowingly furnishes substantial assistance in the commission of the

felony.” Tenn. Code Ann. § 39-11-403 (emphasis added). Here, the State prosecuted the

Petitioner under a theory of criminal responsibility for both offenses. A person is criminally

responsible for another’s actions if

[a]cting with intent to promote or assist the commission of the offense, or to

benefit in the proceeds or results of the offense, the person solicits, directs,

aids, or attempts to aid another person to commit the offense[.]

Tenn. Code Ann. § 39-11-402(2). While the Petitioner did not shoot the victim, he

admittedly procured his own weapon that he used to rob the victim and benefitted in the

proceeds of the offense. Carl Johnson, 2001 WL 1335110, at *2. The Petitioner acted with

the intent required for the offense of criminal responsibility pursuant to the section

referenced in the offense of facilitation. See Tenn. Code Ann. § 39-11-402(2). Accordingly,

we believe that there was simply no evidence to support a jury finding that the Petitioner

merely facilitated the commission of the offense.

We also believe that the Petitioner’s reliance on Brown is misplaced because the facts

of that case are materially different from this case. In Brown, the supreme court concluded

that there wassufficient evidence to convict the petitioner of the lesser-included offense. 311

S.W.3d at 433-34. Here, there was not sufficient evidence to convict this Petitioner of the

lesser-included offense. Accordingly, we conclude that the instruction was not warranted,

that trial counsel was not deficient for failing to request the instruction, and that appellate

counsel was not deficient for failing to raise the omission of the instruction as an issue on

appeal.

B. Jury instructions

The Petitioner contends that trial counsel failed to object to the erroneous knowingly

instruction and that appellate counsel failed to raise the issue on appeal. The Petitioner

acknowledges that the instruction related to the charge of criminal attempt to commit second

degree murder and that the jury failed to reach a verdict on that charge. The Petitioner

asserts that the “improper definition . . . would have had a carry-over [a]ffect” on the jury’s

consideration of the especially aggravated robbery offense. The State responds that the

Petitioner has failed to establish that trial counsel was deficient for failing to object when the

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written jury instructions were correct and when the jury’s question related to the charge of

criminal attempt to commit second degree murder, not the especially aggravated robbery

offense.

Our review of the record reveals that trial counsel did not object to the trial court’s

instruction and that appellate counsel did not raise the issue on appeal. In order to prevail

on this claim, the Petitioner must prove that the trial court erroneously defined the term and

that trial counsel’s failure to object and appellate counsel’s failure to raise the issue on appeal

was prejudicial to his case.

We agree with the Petitioner that the trial court’s instruction in response to the jury’s

question relative to the attempted second degree murder offense was erroneous. Second

degree murder is a result-of-conduct offense. State v. Page, 81 S.W.3d 781, 788 (Tenn.

Crim. App. 2002) (“A jury instruction that allows a jury to convict on second degree murder

based only upon awareness of the nature of the conduct or circumstances surrounding the

conduct improperly lessens the state’s burden of proof.”). This error was harmless because

the jury did not convict the Petitioner of criminal attempt to commit second degree murder.

Thus, while trial counsel should have objected, the Petitioner cannot establish that he was

prejudiced by trial counsel’s inaction as it related to the criminal attempt to commit second

degree murder offense.

Unlike the offense of second degree murder, “robbery is notstrictly a result of conduct

crime.” State v. Guy, 165 S.W.3d 651, 660 (Tenn. Crim. App. 2004); see also State v.

Theron Davis, No. W2002-00446-CCA-R3-CD, 2003 WL 21339000, at *10 (Tenn. Crim.

App. May 28, 2003) (concluding that especially aggravated robbery was not a result of

conduct offense), perm. app. denied (Tenn. Oct. 6, 2003). In order to support a conviction

of robbery, “an accused must intend to engage in certain conduct, obtaining or exercising

control over property; he must intend a certain result, the deprivation of the property; and he

must be aware that certain circumstances exist, that he is not the owner of the property.”

Guy, 165 S.W.3d at 660. In Guy, this court stated, “In our view, each definition of both

intentional and knowing would be relevant for the jury’s consideration of [a robbery]

offense.” Id. Relative to the especially aggravated robbery offense, the jury instructions

provided,

For you to find the defendant guilty of this offense, the State must have proven

beyond a reasonable doubt the existence of the following essential elements:

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that the defendant knowingly obtained or exercised control over

property owned by [the victim];

and that the defendant did not have the owner’s effective

consent;

and that the defendant intended to deprive the owner of the

property;

and that the defendant took such property from the person of

another by the use of violence or by putting the person in fear;

and that the defendant took such property intentionally or

knowingly;

and that the defendant accomplished this act with a deadly

weapon or by display of any article used or fashioned to lead the

alleged victim to reasonably believe it to be a deadly weapon;

and that the alleged victim suffered serious bodily injury.

. . .

“Intentionally” means that a person acts intentionally with respect to the nature

of the conduct or to a result of the conduct when it is the person’s conscious

objective or desire to engage in the conduct or cause the result.

“Knowingly” means that a person acts knowingly with respect to the conduct

or to circumstances surrounding the conduct when the person is aware of the

nature of the conduct or that the circumstances exist.

A person acts knowingly with respect to a result of the person’s conduct when

the person is aware that the conduct is reasonably certain to cause the result.

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These instructions were adequate, and we must presume that the jury followed the trial

court’s instructions. State v. Banks, 271 S.W.3d 90, 134 (Tenn. 2008). In any event, the

jury’s question was limited specifically to the mental state for the charge of criminal attempt

to commit second degree murder. Accordingly, we conclude that the Petitioner cannot

establish that he was prejudiced by trial counsel’s failure to object or appellate counsel’s

failure to raise the issue on appeal.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the postconviction court is affirmed.

_______________________________________

D. KELLY THOMAS, JR., JUDGE

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