### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A pr il 7, 200 4 S es sio n
WILLIAM OSEP CZ UK v. ST ATE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Lawrence County

No. 23648 Stella L. Hargrove, Judge

No. M2003- 01601-CCA -R3-P C - F iled Jun e 22, 2004

The pe titioner, Wi lliam Osepczuk, was convic ted of a t t em p ted first deg ree murder and sentenc ed to confine m en t fo r t wenty -five y ear s. After his conviction and sentenc e we re a ffirme d on direc t appea l, he filed a petition for post-conviction re lief, alleg ing that trial counsel had be en inef fec tive. F oll ow ing a n e vid e nti ary he ari ng , th e po st- c on vic tio n cou rt den ie d th e pe tit ion , a ndthi s ti me ly appea l resulted. Af

ter re view, we aff

irm the denial of the petition.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES and R OB E R T W. W EDEMEYER , J J ., joined.
M. Wallace Coleman, Jr., L awr ence burg , Tenne ssee, f or the a ppellant, Will iam Osepc zuk.
Paul G. Summers, Attorney Gene ral a nd Reporter ; Richard H. Duna vant, A s s i stant Attorney Gene ral; T. Micha el Bottoms, District Attorney Gene ral; and James G. White, I I , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

I n the di rec t appea l, this court set out the facts upon which the petitioner’s conviction was based:
During 1 9 97 and 1998, Ang elo Thomas Wilson acted as a n

informant and e ng ag ed in a number of " underc over drug buy s" f or the L a wr e nc e Cou nty

She ri ff ' s D e pa rtmen t. Af

te r a pe ri odof

tim e , it became ac cepte d "stre et" t al kthat Wil son was ac ting a s a drug inf orma nt.2 Wi ls o n w a s e mp lo y e d a t a lo c a l m a n u f

a c tu r in g p lan t and worke d the 10:00 p.m. to 7:00 a.m. shift. On the evening of Se pte mbe r 9 , 1 99 8, Wils on wa s at a frie nd ' s h ou se wai tin g fo r h is brother to f

urnish him a ride to work w hen the [petitioner] showed up. Wil son had known the [petit ioner] since childhood. Afte r a brief
conver sation, the [petiti oner] offe red t o g ive Wils on a ride to work and the two men pr ocee ded to walk to a near b y motel where the [ p et i t i o n er ] wa s s t ay i n g.
The t w o w a it e d u n ti l a f

r ie n d o f th e [p e ti ti o n e r ], k n o w n as Terry , arrived in a blac k or g ray four door

vehicle. T he [petiti oner] informed Wil son that "he had to ma ke a stop or

two and then he was g oing to dr op [W ilson] off at work." The [petitioner] and Terry rode in the front of the vehicle and Wil son sat in the rea r. [The m en ] went to the store a cross the stre et from the motel and [t he petitioner] made a pit stop at
a friend' s house and pa

rked dow n at the bottom of the hill and he s aid he had to make another stop. He ha d some [drug] buy s he had to do. . . . [They then] went out Mount Ara

rat Road. [The pe titioner and Ter ry ] l et me out on the roa d [nex t to a so y b ean field]. [ The Appellant] said he didn't want me to know the people. I s ai d , "T h at 's wa s fi n e. T h at 's n o p ro b l em

. " I td i d n 't da wn on me a nd the n [th e pe tit ion e r] a ndthe m c a me back dow n the roa d. . . . [The petitioner] st opped the
car and said, " C o m e on, let' s g o," and that' s when he
s t ar t ed s h o o t i n g.
Wils on wa s sh ot i n th e ri g ht l e g . H e the n b e g a n r un nin g int o a be a n f ie ld. He he arda dd iti on a l sh ots a ndre a lize d th a t he wa s " hit all over [his] body ." Wil son was struck approximately seven or eig ht times; resulting in g unshot wounds to his right hand, his rig ht thumb, b et we en h i s ch es tca v i t y

an d h i s ri b ca ge, i n t h e b ac k , i n t h e r i gh tl eg, and twice in the left leg

. After being struck by g unfire, he fell to the g round. The [petitioner] and Ter ry found Wil son in the field and Terry held the victim while the [ petitioner] beat him in the back of the he a d w ith the bu tt o f the g un a nda sti c k. Af

te r a fu ti le a tte mpt

to defe nd himself, Wil son withdrew f urther r esistance . Terry

rema rked, "H e is dea d. Come on, let' s go

. " T h e men then lef t. Wi lson then manag ed to walk to a ne arby h o u s e where he soug ht assistance. Wil son informed both the resident of the house and par amedics that3 respon d ed to t he sce ne that the [petitioner] was the individual
re s p o n s i b l e f

o r t h e s h o o t i n g.

L a w e nf or c e me nt o ff

ic ia ls re c ov e re d f

ive .4 5- c a lib e r s he ll casing s at the crime scene and obser ved a tr ail leading into the bean field. A bloody shirt w ith what a ppeared to be bullet holes, a watch, sung lasses and ke y s were located in the field. Off icer s later obtaine d
a se arc h w arr a nt f

or the [pe tit io ner ’s ] ro om at th e Tr a ve le r' s Mo te l. A .45-c aliber bullet wa s discovere d during the ex ecution of the sear ch
war rant. The .45-ca liber we apon wa s never rec overe d.

Michae l Glen Parrot testified that his apartme nt was burg larized in 1998, resulting in the theft of his " Hig h Point .45-ca liber automatic pistol." T he we apon wa s a "rathe r larg e g un," nickel-plated. M r. P arr ot had save d casing s from his wea pon to have reloa ded. Af

ter t he attempt on Ang elo Wils on' s life, Mr. Parr ot fu rn ish e d th e She ri ff

' s De pa rt me nt wi th the se c a sin g s f ir e d f ro m hi s we apo n. Th e c a sin g s we re se nt to the c ri me la b fo r c omp ari so n w ith those found at the c rime sce ne. The examination pr o v ed that the casing s had bee n fired f

rom the same w eapon. The [petitioner] testified that, on September 9, 1998, he met Ang elo Wil son at Donald Hay g ood' s house at about thre e o' clock that afte rnoon. The me n stay ed ther e for approximately one hour and then proce eded to his room at the Trave ler' s Motel. The [petitioner] and Ang elo wer e joined by

Tim Coope r an d Tiffa ny Wis e. As the afte rnoon prog resse d, Ang elo announce d that he wanted some cra ck
cocaine. The [petitioner] left the motel in Cooper' s vehicle, purcha sed fifty

dollars of c rac k cocaine, and returned to the motel
room. An g elo proc eede d to smoke three c rac k rocks using an aluminum c an fashioned into a pipe . Two hours late r, Ter ry Polidro
arrive d at th e ro om. Te rry a nd the [pe tit ion e r] l e ft in T e rry ' s v e hic le to purcha se an a dditional seventy -five dollars of cr ack c ocaine

. Ang e lo r e main e d a t th e mo te l. U p o n r e tu r n in g to th e mo tel, the [petit ioner] returned to his room, but Ange lo left with Terry . The [petit ioner] did no t s ee Ang elo the re mainder of the eve ning. T he [petit ioner] maintains that Ang elo' s cra ck-i n d u ced state -o f- ha llu c inatio n r e su lte d inthe c ur re nt c ha rg e a g a ins t hi m.

I n rebuttal, the State pr es en t ed the testimony of Anthony Quinn Wil son. This witness testified that o n the nig ht of the shooting, the [pe titioner ] arrived at his residence afte r midnight trying to sell a silver and bla ck .45-c aliber handg un.4

State v. Wil liam “B utch” Ose pczuk, No. M1999-00846-CCA-R3-CD, 2001 WL 120716, at **1-2 (Tenn. Crim. App. F eb. 1, 2001), pe rm. to appea l denied (Te nn. J une 18, 2001).

The pro s e pe tit ion fo r po st- c on vic tio n r e lie f, wh ic h w a s su bs e qu e ntl y a me nd e d b y

c ou ns e l, claimed, int e r a lia , that tr ia l c ou ns e l ha d be e n in e ff e c tiv e in n ot i nte rv ie wi ng state ’s wi tne sse s “ to determine all available defe nses that could have possiblybeen raised;” in not filing “ any meaning ful pre- trial motions, other tha na mo tion f or discovery ;” in “failing to [sic] any meaning ful investigation
o f t h e c as e; ” i n fa i l i n g “t o m ak e o b j ec t i o n t o t h e el em en t s o f t h e i n d i ct m en tan d i n s tru ct i o n o f c h ar ge to the jury ;” in f

ailing to r aise as an issue the “trial court’s failure to i n s t ru ct o n l es ser- included offe nses;” in allowing “testimony and evidenc e

. . . of an unr elated and unchar g ed off ense;” in failing “to make timely

objections, to prese rve issues to be raised in [the] m otion for new trial, as we ll as
on direc t a

ppeal.” Additionally , the petitioner claimed that the trial court had er red in not instructing “the jury on all possible lesser-inc luded offe nses.” In counsel’s amendment t o the petition, it was alleg ed that trial c ounsel had be en ineffe ctive by “lea ving in the middle of the trial” a fter le arning that his wife and c hildren had be en seriouslyinjured in an a utomob i l e ac cident, and, w hen trial resumed the next day , counsel “ was una ble to focus his full attention on the trial a s his attention was divided betwee n his injured family and his repr esentation of P etitioner;” bynot calling “numer ous materia l witnesses;” and by failing to “impeac h or inade quate impea chment of w itn ess Anthony Quinn Wil son.”

At the beginning of t he evidentiary hearing on the petition, post-conviction counsel advised the court two claims wer e being pursued: the “f ailure to instruct on lesse r included of fense s,” and “inef fec tive assistanceof counsel.” The only witness testify ing at the hearing was the pe titioner’s tr ia l c ou ns e l, w ho sa id that, p ri or to t ri a l, h e ha d “ me t se ve ra l ti me s” wi th the pe tit ion e r, in “ [p]r e tty le ng thy me e tin g s, ” a ndob ta ine d a lis t of po ssi ble wi tne sse s. Cou ns e l, w ho sa id that he “ pr ob ably [had] done seve ral doz en trials,” te stified at leng th as to his pretrial pre parations, including witnesses’ inter views. Asked a bout the acc ident during the trial, which ha d injured his wife and children, he responde d, “I ’m not g oing to say it didn’t have some kind of effec t on me, but I ’m [si c]
c a n ’ ts i th e r e a n d s a y

I d i d n ’ tc a l l a

w i t n e s s b e c a u s e w e d i d n ’ td o t h at

. ” I n s u m , h e s a i d , “ I f e lt composed e nou gh to come bac k in here and finish the trial.” He sa id that, in every trial, “lesse r included off

enses a re right at the top of my

list of things to do because that is fertile gr ound for a lot of thi n gs .” He said that he “ probably had more succe ss on lesser include d instructions not being char g ed or jury

instr u ct i o n s g ener ally

being char g ed incor

rec tly beca use that is just gre at stuff for appea l.” He describe d the petitioner’s tria l as “not one of the ca ses from a

defe nse per spective that would be ac cepta

ble in my view as an all-or- nothing char g e.” H oweve r, he c ould not reca ll what had
occur red a s to instruc ting the jury on lesser- included offe nses. Asked if he should have raised it as an issue in the motion for new trial and on a ppeal, c ounsel responde d, “I would think so, y eah,” but added, “ The only

re ason I wouldn’t raise [i t] . . . is if we ag ree d somewher e in the re cord that we did n’ t w a nt the c harge.” On c ro ss- e xami natio n, tr ia l c ou ns e l said that hi s p ra c tic e wa s “ a lmo st exclusivelycapital murde r def ense” for whic h he had be en ce rtified.

On app e a l, the pe tit ioner prese nts the c la ims that th e tr ia l c ou rt e rr e d in no t c ha

rg ing a s to lesser- included off

enses a nd that trial counsel wa s ineffe ctive in fa iling “to c all certain witnesses at5

trial” a nd “to ask for

lesser inc luded offe nses to be cha rg ed and the n failed to include on the recor d the re ason, if any , of [sic] why none we re c harg ed.”

AN AL YSI S The post-c onviction petitioner bea rs the burde n of proving h i s al l egations byclea r and
c on vin c ing e vid e nc e . Se e Te nn . Co de An n. § 4 0- 30 -1 10 (f ). Whe n a n e vid e nti ary

he ari ng is h e ld in the po st- c on vic tio n s e tti ng , th e fi nd ing s of fa c t mad e by the c ou rt are c on c lus ive on app e a l un le ss the evidenc e pre ponderates ag ainst them. See Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1996)

. Where a ppellate r eview involves pur ely fac tual issues , the appe llate court should not reweig h or
ree valuate the evidenc e. See H enley v. State, 960 S.W .2d 572, 578 (Tenn. 1997) . Howeve r, re view
o f a tr i a l c o u r t ’ s ap p l i c a t i o n o f t h e l a w t o t h e f

a c t s o f t h e c a s e is de novo , wi t h no presumption of
corr ectne ss. See Ruff v. State, 978 S.W .2d 95, 96 (Tenn. 1998) . The issues of de ficient pe rformance of c ou ns e l a ndpo ssi ble pr e jud ic e to the de fe ns e are mixe d q ue sti on s o f l aw and fa c t a nd , th us , s ubject to de novo revie w by the appe llate court. See State v. B urns, 6 S.W.3d 453, 461 (Tenn. 1999).

I n order to determine the compete nce of counsel, Te nnessee courts have applied standa rds develope d in f

eder al case law. See State v. T ay lor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 1997) (n oti ng that th e sa me sta nd ardfo r d e te rm ini ng ine ff e c tiv e a ssi stanc e of co unse l th a t is app lie d in fede ral case s also applies in T ennesse e). The United States Supreme Court articulated the standa rd in S tr ic klandv. Was hin g ton , 4 66 U. S. 6 68 , 1 04 S. Ct . 205 2, 80 L . E d. 2d67 4 ( 19 84 ), wh ic h is widely acc epted a s the appropri at e standard f or all cla ims of a convicte d petitioner that counse l’s assistance was de fec tive. The standard i s firmly g rounded in the belief that counsel play s a role that is “critica l to the abilityof the adver sarial sy stem to pr oduce just re sults.” I d. at 685, 104 S. Ct. at 20 63 . T he Str ic klandsta nd ardis a tw o- pr on g te st:
First, the de fenda nt must sh o w that counse l’s perf ormanc e wa s defic ient. This require s showing that counsel made err ors so serious that co u nsel was not func tioning as the “counse l” g uaranteed the de fe ndant by

the Sixth A me nd me nt. Se c on d, the de fe nd a nt mus t sh ow that th e de fi c ie nt p e rf orma nc e pr e

jud ic e d th e de fe ns e . T his require s showing that counsel’s error s wer e so serious as to deprive the def endant of a fa ir trial, a tria l whose re sult is reliable.

I d. a t 6 8 7 , 1 0 4 S. Ct

. a t 2 0 6 4

. T h e Str ic k lan d Co u r t f u r th e r e xp lain e d th e me a n in g o f “ d efic ient p e r f o r m a n c e ” i n t h e f

i r s tp r o n g o f

t h e t e s ti n t h e f

o l l o w i n g w a y:

I n any case prese nting a n ineffe ctiveness c laim, the perf ormanc e inq uiry mu st be wh e the r c ou ns e l’ s a ssi stanc e wa s r e a so na ble considering al l t h e circumstances. . . . No pa rticular se t of detailed
ru l es for c ounsel’s conduc t can satisfactorily take a ccount of

the varie ty of circ umstances fac ed b y defe nse counse l or the ra ng e of6 leg it i m ate decisions reg arding how best to repr esent a criminal de fe nd a nt.

I d. a t 688- 89 , 104 S. Ct. at 206 5. Th e pe tit ion e r mus t est abli sh “ that cou ns e l’ s r e pr e se ntatio n f e ll below an obje ctive standa rd of r easona

bleness under

prevailing prof

e s s io n a l n o rms.” House v. State, 44 S.W .3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996))

.
As fo r the pr e

jud ic e pr on g of

the te st, the Stric kl and Cou rt state d: “ Th e de fe nd a nt mus t show that there is a

rea sonable proba

bilitythat, but for counse l’s unprofe ssional error s, the result of the pr oc e e din g wo uldha ve be e n d if fe re nt. A r e a so na

ble pr ob abil ity

is a pr ob abil ity

su ff ic ie nt t o underm i ne conf

idence in the outcome.” 466 U .S. at 694, 104 S. C t. at 2068; see a lso Overton v. Sta te , 87 4 S.W. 2d 6, 11 (T e nn

. 19 94 ) (c on c lud ing that pe tit ion e r faile d to e sta bli sh that “ the re is a
rea sonable proba

bilitythat, but for counse l’s err ors, the outcome of the proc eeding s w o uld have be en differ ent”)

. Cou rt s n e e d n ot a

pp ro a c h th e Stric klandte st i n a sp e c if ic or de r o r e ve n “ a dd re ss b oth components of the inquiry if the defe ndant makes an insufficient showing on one.” 466 U .S. at 697, 104 S. Ct . at 2069; see a lso G oad, 938 S.W .2d at 370 (stating that “failure to pr ove either defic iency or pre judice provide s a suffic ient basis to deny relief on the ineff

ective a ssistance c laim”).
We note that when post-c onviction proce eding s have inc luded a f ull evidentiary

hearing, a s was true in this case, the tria l judge ’s finding s of fa ct and conclusions of law are g iven the ef fec t and weig ht of a jury

verdic t, and this court is “bound by the trial judg e’ s fi n d i n gs of fa ct unless we conclude that the evidenc e contained in the re cord pr eponder ates a g ainst the judg ment enter ed in the
c a us e .” B la c k v . Stat e , 794 S.W. 2d 75 2, 75 5 (T e nn . Crim . App . 199 0) . T he re vie wi ng c ou rt mus t ind ulg e a str on g pr e su mpt ion that th e c on du c t of c ou ns e l f

a ll s wi thin the rang e of

re a so na ble pr o f e s s io n a l a s s is tan c e , s e e Str ic k lan d , 4 6 6 U

. S. a t 6 9 0 , 1 0 4 S. Ct

. a t 2 0 6 6 , a n d may n o t s e c o ndg uess the tactica l and strateg ic choice s made by trial counsel unless those c hoices we re uninformed beca use of inade quate pr epar ation. See H el l ard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). T he fa ct that a strate g y

o r t ac t i c fa iled or hurt the de fense does not alone support the claim of inef fec tive assistance o f co u n s el

. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). Finally , a per son char g ed with a c riminal offe nse is not entitled to perfe ct re prese ntation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996) . As explained in Burns, 6 S.W.3d at 462, “[c]onduct that is unre asonable under the fac ts of one case may be perfec tly

rea sonable unde r the fa cts of anothe r.”

As to the petit ioner’s claim that counsel was ineffe ctive in failing to “ca ll certa in witnesses,” as t he is sue i s explained on appea l, the post-conviction court, among its detailed written finding s of fac t and conclusions of law, dete rmined that counse l had testified that he “ was not surprise d by any witnesses ca lled b y t h e s tate or by their testimony

at trial” and that “[n] o further testimonywas offe red to the Court by Petitioner as to how the testimony of any witness, not a ccounte d for by [t rial
c ou ns e l], w ou ld h a ve a ff

e c te d th e ou tc ome of the tr ia l.” Sin c e , as the po st- c on vic tio n c ou rt c or re c tly notes, the petitioner did not pre sent, at the post-c onviction hearing, any of t he witnesses whom he7

claims would have been be nefic ial to his de fense , the rec ord supports the court’s determination that he fa iled to show counsel wa s ineffe ctive in this reg ard. See Bla ck, 794 S.W.2d at 757 (stating that

" [w]he n a pe tit ion e r c on te nd s th a t tr ia l c ou ns e l faile d to d isc ov e r, int e rv ie w, or pr e se nt w itn e sse s in support of his def

en s e, these witnesse s should be prese nted by the petitioner at the evidentiary hearing. A s a g ener al rule, this is the only way the petitioner can establish that . . . the fa ilure to have a known witness pr esent or c all the witness to the stand re sulted in the denial of c ri t ical evide nce which inure d to the prejudice of the pe titioner.")

.
We next will consider the pe titioner’s claim that trial counse l was ineffec tive for not raising
as an i s s u e t h e fa ct t hat the trial c ourt had not instructed a s to any lesser- included off

enses of attempted first de g ree murder. A s to this claim, the post-conviction court found that no lesse rincluded off

enses ha d been char g ed, that this was not ra ised as an issue e ither in the motion for new trial or on appe al, and that not re questing such an instruction w as “a tactica l trial maneuve r on [trial counsel’s] part.” Noting in brief the f acts of the case , the court said the “e vidence was overw helming a s to the planning an d p re m edit ation” to murder the victim, who sustained “g rave , life-thre atening injuries . . . when he wa s shot numerous times, beaten a nd clea rly left for dead in a soy bean f ield by [t he petitioner] whom he positively identified.” Thus, a

rea sonable jury

would not have c onvicted him of other tha n attempted first de g ree murder. A ccor dingly , the post-conviction court determined, as to these iss ues, t hat t he petiti oner ha d failed to show e ither that trial counse l ha d b e e n in e ff

e c tiv e or th at he had be e n p re jud ic e d b y

c ou ns e l’ s a c tio ns . We wi ll r e vie w the se finding s. As the post-convic tion court noted, and our supreme c ourt explained in State v. Moore, 77 S.W. 3d 13 2, 13 4 (T e nn

. 20 02 ), a tr ia l c ou rt ha s a re sp on sib ili ty , re g ard le ss of wh e the r cou ns el so
re qu e sts , to ins truc t a s to le sse r- inc lud e d o ff e ns e s:
[I ]t is the duty

of the trial judg e to i nstruct t he jury as to the law of

a le sse r- inc lud e d o ff

e ns e if he or sh e de te rm in es tha t: ( 1) re a so na ble minds c ould a cce pt the offe nse as lesser- included; and (2 ) t he evidenc e is leg ally

sufficie nt to support a conv i ction for the lesser- included off

ense. St ate v. B urns, 6 S.W.3d 453, 469 (Tenn. 1999). The judge shall instruct the jury on all l esser-included offe nses notwithstanding a reque st f rom the defe ndant. Tenn. Code Ann. § 40-18-110( b) (1997 Repl.).

I d. (footnote omitted).
The que stion of whether

a g iven offe nse should be submitted to the jury as a le sser-inc luded offe nse is a mix ed question of law and fac t. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (c iting State v. Smil ey , 38 S.W .3d 521 (Tenn. 2001) ). The sta ndard of revie w for mix ed questions of law
a ndfa c t is de novo with no presumption of corr ectne ss. I d.; see a lso Burns, 6 S.W.3d at 461.8

I n State v. Richmond, 90 S.W .3d 648 (Tenn. 2002) , the court expl ained that ove rwhe lming pr oo f a s to the g re a te r o ff e ns e do e s n ot o bv ia te the ne c e ssi ty to i ns truc t a s to le sse r o ff e ns e s:
[ O] v er wh el m i n g ev i d en ce e s t ab l i s h ed d ef en d an tR i ch m o n d 's participation in the robbery of Mos e C ux art a nd attempted robbe ry of Charles Stephen Ea

rls. L ikewis e, evide nce w as over whelming and uncontroverted that dea dly wea pons were involved. I n proving the g reater off

enses , the State nec essarily proved the lesser- included offe nses. There fore , a jury could have convicted the defe ndant of the lesser- included off

enses of robbery and attempted robbery

. As such, it was err or for

the trial court not to char g e the lesse r-include d
o f f e n s e s o f r o b b e r y a n d a t t e m p t e d r o b b e r y.

I d. at 662-63.

Howeve r, the c ourt additionally explained that the fac t that lesser offe nses should have be en char g ed, but wer e not, does not nec essarily require a re versa l of the convic tion:
[ O]ur de termination whether this e rror was harmless bey ond a
r e a s o n ab l e d o u b t h i n g e s u p o n w h a t a r e a s o n ab l e j u r y wou ld have done in light of

the evidenc e p ro d u ce d at trial. We hold that no
rea sonable jury

would have c onvicted the defendant on the lesser- included off

enses of robbery and attempted robbery instead of the cha rg ed off enses due to the uncontrove rted a nd overw helming evidenc e esta

bl i s h i n g the use of de adly wea pons and his direc t participation in the offense s. Any err or wa s harmless bey ond a
re a so na ble do ub t.

I d. at 663.

I n the pre sent appe al, we r espec tfully dis a g r e ew it

h the post-conviction court’s determination that tria l c ou ns e l, a s a ta c tic a l dec isi on , ha d de c ide d th a t he didno t w a nt l e sse r- inc lud e d o ff e ns e s to be cha rg ed to the jury . I n fac t, trial counsel testified that, a lthough he could not r eca ll his re asoning at the time, he be lieved he would have wanted le sser off enses to be c harg ed, so the jury could make other than a n “all-or -nothing ” dec ision in a very brutal case. Further, the court ha d an indepe ndent
re sp on sib ili ty , r e g ard le ss of cou ns e l’ s w ish e s, to i ns truc t th e jury a s to le sse r- inc lud e d o ff e ns e s. At te mpt e d f

ir st d e g re e mur de r, fo r w hic h th e pe tition e r wa s c on vic te d, is d e fi ne d a s th e a tte mpt to commit a “pre meditated and intentional killing of another ,” see Tenn. Code Ann. § 39-13- 202(a) (1); wh ile a tte mpt e d s e c on d d e g re e mur de r, wh ic h h e arg ue s sh ou ld h a ve be e n c ha rg e d, is d e fi ne d a s a “knowing killing of a nother,” see Te nn. C ode Ann. § 39- 13-210(a )(1) . Given the br utality of the
a tta c k o n th e vic tim , a nd

the fa c t th a t th e pe tit ion e r andhis c od e fe nd a nt l e ft the vic tim

on ly be c aus e the y be lie ve d th e y

ha d kill e d him , wh ic h wa s th e ir int e nti on , w e c on c lud e that no ratio na l ju ry wo uld h a v e c o n v i c t e d t h e p e t i t i o n e r o f a n y o f f e n s e o t h e r t h a n a t t e m p t e d f i r s t d e g r e e m u r d e r

. A c c o r d i n g l y,9

the re cord supports the post-conviction court’ s determination that the petitioner failed to show that he wa s p re

jud ic e d b y

the jury ins truc tio ns

.

CO NC LU SION

Ba sed upon the for eg oing authorities and reasoning , we affirm the de nial of the pe tition for post-conviction re lief.

___________________________________ ALAN E. GL

ENN, JUDGE