### IN THE S UP REME COURT OF TENNESS EE AT NAS HVILLE O ct obe r 5, 200 5 S es sio n

WILLIAM GLEN N WILE Y v. STA TE OF TEN NES SEE

App e al b y P e r m iss ion fro mth e Co ur t o f Cr im ina l A ppe als

Crim inal Cou rt for Davidson Coun ty No. 95-C- 1918 WalterC. K urtz, Judge

No. M2003- 00661-SC-R11- P C - F iled Janu ary 26, 2006

We gr anted the a

pplications for pe rmission to app ea l fi l ed b y the State of Te nnessee and the petitioner to determine 1) whe ther State v. B urns, 6 S.W.3d 453 (Tenn. 1999), which c larified the analy sis for determ ining lesse r-include d offe nses, cr eate d a new constitutional rule that must be

app lie d r e tr oa c tiv e ly

to p os t- c on vic tio n c a se s, 2) wh e the r the pe tit ion e r w a s e nti tle d to po stconviction re lief under

the DNA Re lief Act, and 3) whether the petitioner wa s denied his rig ht to the eff ective a ssistance of c ounsel at trial. The trial court and the Court of Criminal Appe als g rante d a

new trial as to the petitioner’s felony murder conviction beca use the jury had not bee n char g ed on the lesser -in cl u d ed off

ense of second de g ree murder but de nied post-conviction re lief as to the petitioner’s conviction for especia lly ag g ravated robbe ry . After due conside ration, we conclude 1) that State v. B urns didno t c re a te a ne w c on sti tut ion a l rule tha t mu st b e re tr oa c tiv e ly

app lie d to po stconviction ca ses, 2) that the pe titioner was not entitled to a new trial or other relief based on D NA

re su lts , a nd3) that th e pe tit ion e r w a s d e nie d h is c on sti tut ion a l r ig ht t o e ff e c tiv e a ss i sta nc e of

c ou ns e l. Acc ording ly , the judg ment of the Court of Criminal Appeals is reve rsed, a nd the ca se is rema nded for a new tria l on felony

murder and espec ially

ag g ravated robbe ry

.

Te nn. R . A pp. P . 1 1 A ppe al b y P e r m iss ion ; J udgm e nt of t he Co ur t o f Cr im ina l A ppe als Re ve r se d

E. R I L EY A NDE R S ON , J
., delivere d the opinion of the court, in which W I L L I AM M. B ARKE R , C.J
., and A DOL PH O A. B I RCH , J R ., J ANI CE M. H OL DER , and C OR NE L I A A. C LARK , J J ., joined.

J o d i e A

. B e l l
, N a s h v i l l e , T e n n e s s e e , f o r t h e A p p e l l a n t

/ A p p e l l e e , W i l l i a mG l e n n W i l e y.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Mic ha e l E . M oo re , So lic ito r G e ne ra l; E liza be th T. Ry an, Senior Counsel; Vi ctor S. J ohnson, I I I , District Attorney Gene ral; and Lisa A. Na y lor, Assistant District Attorney Gene ral, for

the Appellant/Appe llee, State of Te nnessee

.-2- OP IN ION

BACK GR OUND

I n 1 99 9, the pe tit ion e r, Willi a m Gle nn Wile y , wa s con vic te d of fe lon y mur de r ande sp e c ia lly ag g ravated robbe ry

by a jury in Davidson County , for whic h he was sentenc ed to life imprisonment without p ar ole and twe nty -five y ear s, respe ctively . The Court of Criminal Appea ls affirme d the convictions and the se ntence s o n ap peal, a nd this Court denied the petitioner’s a pplication for pe rm iss ion to a

pp e a l.

The pe titioner sought post-c onviction relief on the basis that the trial court e rre d in failing to instruct the jury

on the lesser -included of fense of sec ond deg ree murder and that he wa s denied his constituti onal rig ht to the effe ctive assist ance of counse l at trial. The pe titioner also alleg ed that DNA a naly sis conducte d afte r t rial had established the prese nce of his own bl ood at the sce ne and thus mandated post-c onviction relief.

Th e e vid e nc e in the re c or d f ro m th e tr ial and the po st- c on vic tio n p ro c e e din g s is se t f orth below.

Tria l an d D ire c t A pp e als

On J une 6, 1995, the victim, Fr ank An d re ws , was found de ad in the bathr oom of a motel room in Nashville, Tenne ssee. The victim’s head, whic h was fa ce dow n in the toilet, was cove red in b loo d, a ndthe re wa s bloo d in the toi le t. Th e vic tim ’s po c ke ts h a d b e e n tu rn e d in sid e -o ut, a ndhis

wa lle t w a s mi ssi ng . B loo d- sta ine d mo ne y tot a lin g $3 2. 50 wa s f

ou ndin the bathtub . A c ut l a mp
c o r d
, a p h o n e c o r d
, a n d a

p o c k e t k n i f

e w e r e f o u n d i n t h e b a t h r o o m

. T h e m o t e l r o o mw a s i n d i s arr a y, and blood and g lass wer e found on the bed.

The pe titioner was employ ed as a g roundskee per at the motel. On the day th e v i cti m was found, the pe titioner and his g irlfriend, w ho also worke d at t h e m o t el, had disappeare d without g iving notice or picking up their pay chec ks. Fing erpr ints recove red f

rom broken bottl es i n the vic tim ’s mot e l r oo m matc he d th e pe tit ion e r’ s f ing e rp ri nts

. The pe titioner was ar

rested later in Evansville, Indiana. When questioned, he told police of fi c e rs that he a ndthe vic tim ha d be e n drinking tog e the r a ll d a y . H e state d th a t he a ndthe vic tim g ot into an arg ument, that the victi m “r u s h ed ” h i m , and that he hit the victim over the hea d twice with a vodka bottle. Af

ter he helped the vic tim int o t h e b at h ro o m so that the victim could “clea n up,” the pe titioner took the victim’s wallet and lef t. The petiti oner told office rs t hat t he victim had been a live and talking when the petitioner left the motel and that “he had no idea ” that the victim had been se vere ly

injured.

Dr . B ru c y L e v y , M e d i c a l E xa

m i n e r f o r Da vid so n Co un ty , T e nn e sse e , te sti fi e d th a t a n auto ps y was pe rformed on the v i cti m by Dr. Ann B ucholtz. Dr. L evy testified that he a g ree d with Dr.-3-

Buc holtz ’s conc lusion t h at the victim’s death wa s cause d by blunt force trauma to the he ad. Acc ording to the autopsy report, the victim suff

er ed a s u bara chnoid hemorr hag e and subdur al bleeding

. Fifty cubic centimeter s of blood w as found in the victim’s head whe re he had bee n struck. Dr. L evy explained that the “amount of blood would take up room that would normally be occ upied by the br a in” a ndth at “ the br a in w ou ld b e pu sh e d o ut o f the way

. . . to make ro om f

or thi s hemorrha g e.” A ccor ding to Dr . L evy , the vi ctim’s “death was caused by not just the bleeding in the brain a rea but the injuries that the bleeding repr esent[ed] it self.”

Al tho ug h th e a uto ps y re ve a le d tha t the vic tim ’s blo od a lc oh ol co nte nt wa s .34 % at the tim e of his death, Dr . L evy testified that he ag ree d with D r. Buc holtz ’s finding that alcohol poisoning wa s
n o tt h e c au s e o f t h e v i ct i m ’s d ea t h

. Dr

. L ev y s t at ed t h at th e a u t o p s y

re p o rt co n t ai n ed n o fi n d i n gs associate d with a lcohol poisoning, such as brain stem swelling , cer ebra l edema, pulmonary edema
, o r a s p i ra t i o n

. M o re o v er , Dr

. L ev y n o t ed t h at ac co rd i n g t o n u m er o u s au t h o r i t a t i v e p at h o l o gy text books, a lethal leve l of blood alcohol is .40% or a bove.

Dr. Ann B ucholtz, a medical examiner now loc ated in Phoenix, Arizona, testified that she h a d p e r f o r m e d t h e a u t o p s y o n t h e v i c t i mw h i l e w o rk i n g a s a m e d i c a l e x a m i n e r

i n D a v i d s o n C o u n t y, Tenne ssee. She stated t hat t he victim had lac erations to hi s head a nd fac e, scr apes on his arms, and bruising on his arms and ha nds. She described some of the w ounds as “de fensive.” Although the victim did not have a skull fra cture , he had subdur al bleeding betwee n his skull an d b ra i n . Dr. Bu ch o l t z t es t i fi ed t h at t h e c au s e o f t h e v i ct i m ’s d ea t h wa s b l u n tfo rc e t ra u m a t o t h e h ea d

. Al t h o u gh the vic tim ha d a .3 4% blo oda lc oh ol c on te nt, Dr . Bu c ho ltz sta te d th a t th e vic tim didno t di e of

a c ute alcohol pois oning. She emphasized that lethal levels of blood a lcohol content ar e .40% a nd above and eve n highe r for

chronic alcoholics.

F or the de fe ns e , th e pe tit ion e r p re se nte d th e te sti mon y of Dr

. Cha rl e s H arl a n, a

fo re ns ic patholog ist. Dr. Har lan testified that he ha d revie wed the a utopsy finding s and that he be lieved the victim had died from a cute e thy l alcohol poisoning a nd not blunt force tr auma. Dr . Har lan desc ribed t h e v i ct i mas a “ co m m o d e h u ggi n g d ru n k

. ” Al t h o u gh Dr

. Ha rl an co n ce d ed t h at s ev er al p at h o l o gy text books define a

lethal level of

intox ication as .40% and above, he testified that the textbooks wer e not authoritative. Dr. H arla n also s t at ed that evidenc e of br ain stem swelling , cer ebra l edema, pulmonary

edema , or aspira

tion is not require d for a

finding of ac ute ethy l alcohol poisoning. D r. Har lan did not discuss the autopsy finding s with Dr. L evy

or Dr. B ucholtz.

After deliberating, the jury convicted the petitioner of the c harg ed off enses of felony murder and espe cially

ag g ravated robbe ry

.
Th e tr ia l th e n mo ve d in to the pe na lty ph a se fo r the jury

to d e c ide the pe tit ion e r’ s p un ish me nt, i.e., life imprisonment without parole or life i m p risonment. The prose cution relied on the petitioner’s two prior convictions for robbery as fe lonies involving violence to a per son. See Tenn. Cod e An n. § 3 9- 13 -2 04 (i )( 2) (2 00 3)

. Th e pr os e c uti on a lso arg ue d tha t the kil lin g ha d oc c ur re d in the cour se of a

felony . I d. at (i)( 7).-4-

I n mi tig a tio n, the pe tit ion e r t e sti fi e d tha t he wa s thirty -t wo y e ars old a t the tim e of the tr ia l. He testified that his parents divorce d when he was ten a nd that he wa s raised by his mother. The petitioner left sc hool after the eleve nth g rade and beg an working in va rious construction and f

actory jobs. Although he admitted that he had pleade d g uilty to robbery in Ohio, he explained that he had driven the c ar a fter a

friend, w ith who m h e h ad b een drinking, stole two pur ses. The pe titioner te sti fi e d th a t he wa s a n a lc oh oli c a ndthat he hadre c e ive d c ou ns e lin g fo r dru g a nda lc oh ol a bu se while in custody

for the O hio offense and had a lso completed a violenc e-pr evention prog ram.
The pe titioner testified that he worked at the m otel wher e the victim was killed. He a nd the victim met while the petitioner wa s sitti ng by the poo l and drinking from a c ooler of be er. The victim seemed like a

“very nice man,” and they

beg an drinking toge ther. After finishing the be er, t h ey we n t t o a li quor store and boug ht vodka and more beer . They returne d to the victim’s motel room and c ontinued drinking until they wer e as “ drunk as two human be ings c ould be.”

The pe titioner testified that he a nd the victim started to ar g ue about whe ther the vic tim had g iven the petitioner mone y to buy “some dope ” and w hether the petitioner wa s “the c ab drive r.” Acc ording to the petitioner, the victim “rushe d ” h i m , an d they “fe ll up ag ainst the dresse r.” The petitioner then hit the victim with a bottle, and the victim “ fell backw ards on the bed.” After helping the victim ge t to the bathroom, the petitioner sa w the victim’s wallet on a night stand. He took the wallet bec ause he knew he “wa s g oing to ha ve to be leaving” and was g oing to “g et fire d.” He put his beer c ooler in the c ar a nd drove to Ke ntucky with his girlfriend.

The pe titioner testified th at he wa s not awar e that the victim had died until he wa s told by po lic e of fi c e rs wh o a

rr e ste d h im i n Eva ns vil le , I nd ia na

. He te sti fi e d tha t he did no t r e a lize the vic tim

wa s se ri ou sly

inj ur e d and that he wo uld ha ve c a lle d fo r he lp ha d he kn ow n. He te sti fi e d th a t he did not know who cut the e lectric al and tele phone cor ds which were fo u n d i n the bathroom ne ar the vic tim

.
Th e jury

imp os e d a

pu nis hme nt o f l if

e imp ri so nme nt w ith ou t pa role. Aft er a s e pa

rate sentenc ing he aring
, the t rial court imposed a sentence of twenty -five y ear s for e specia lly ag g ravated robbery , to be serve d concur rently

.
Th e Cou rt of Cr imi na l Ap pe a ls a ff ir me d the c on vic tio ns a ndthe se nte nc e s o n d ir e c t app e a l. Th is C ou rt

de nie d th e pe tit ion e r’ s a

pp lic a tio n f

or pe rm iss ion to a

pp e a l.

Post-Conviction Procee dings

After the conclusion of hi s direc t appea ls, the petit ioner filed a petiti on in the trial court f or po st- c on vic tio n r e lie f. Th e pe tit ion a lle g e d, a mon g oth e r g ro un ds , th a t th e tr ia l c ou rt faile d to instruct the jury

on the lesser -included of fense of sec ond deg ree murder and that trial counsel wa s ineffe ctive for

failing to reque st the le s s er -i n cluded offense instruction, failing to investigate, and failing to raise r eleva nt defe nses.-5-

Prior to the post-conviction evidentiary hearing, the trial court he ld a hea ring on the petitioner’s request for

DNA testing of a blood-c overe d towel that had be en found at the scene . The petitioner testified that he had bee n struck in the nose by the victim and that he ha d used the towe l to w ipe blo odfr om h is f

a c e . H e c on te nd e d that the pr e se nc e of his ow n b loo d at th e sc e ne wo uld ha ve su pp orte d h is the ory of se lf -d e fe ns e. Th e tr ia l c ou rt de nie d th e re qu e st p e nd ing the po stconviction hea

ring

. At the pos t-conviction hearing
, trial counsel, L ionel Ba rre tt, testified that he r epre sented the petitioner at trial. B arr ett had pra cticed c riminal defe nse for thirty -four y ear s. He concede d that he did not file a motion to suppress the statement the pe titioner had g iven to arr es t i ng office rs eve n though the statement re veale d that the petitioner ha d asked office rs for a lawy er. Ba rre tt believed that the statement wa s “helpful” to the petitioner and “ was not dama g ing.”

Ba rre tt sa id that he revie wed the discovery he had been g iven, interviewe d the office rs, and tal k ed t o Dr. Char les Har lan. He a dmitted that he did not talk with a witness named Arthur L ee Woods despite having a

report indicating that Woods, a cab drive r, had spoke n to the victim on the day of the off ense. Ba rre tt said that Woods was not prese nt when the offe nse wa s committed and that he saw no other re levanc e to Woods’ invol v ement. He also said that he did not interview Michel l e S h ef

fi el d
, t h e p et i t i o n er ’s gi rl fr i en d
, b ec au s e t h e p et i t i o n ert o l d h i ms h e h ad n othing he lpful to add.

Ba

rre tt admitted that he could ha v e objected to sever al comments made by the prosec utor during voir dire, suc h as t he prosecutor’s refe renc es t o the “murder” victim, the victim’s “def ensive” wounds, and the victim being “cut to shreds.” Ba rre tt said that he did not object bec ause he pref err ed to reserve objec tions for issues that are “moder ately signific ant.”

Barr et tt es t i fi ed t h at h i s “p ri m ar y ” s tra t egywa s t o d ef en d aga i n s tt h e f

el o n y m u rd erch ar ge by try ing to “ defe at the underly ing f elony .” He conce ded, howev er , that he did not reque st an instruction on intox ication as a defe nse to the petitioner’s a bilityto form intent for the unde rly ing felony . He a lso conce ded that he did not r equest a jury instruction on the lesser -included of fense of second de g ree murder.

B arr e tt t e sti fi e d th a t a no the r t ri a l st rate g y wa s to sh ow that th e vi c tim ha d d ie d o f a c ute alcohol pois oning since t he autopsy showed that the vi ctim’s blood alcohol content was .34%. The theory em er ged whe n Ba rre tt was interviewing Dr. Ha rlan for the purpose of

g etting ba ckg round information with which to c ross-examine Dr. L evy . Ba rre tt said that he did not know that Dr. Ha rlan would “volunteer ” the opinion that the victim died from acute alcohol poisoning and not blunt force trauma. He was awa

re at the time that “ Dr. Ha rlan a nd Dr. L evy

wer e at odds” over w ork “that had been done by Dr. Har lan.” Ba rre tt a dmitted, howe ver, that he did not file a motion asking that the prosec utor be pre vented f rom asking Dr. Ha

rlan a bout prior ca ses he ha d handled.

Ba rre tt testified that he opted not to object to the introduct i o n o f crime sc ene photog raphs that he had revie wed prior to trial. He also stated that he did not re call lea rning about a bloody

towel-6-

being found at the c rime sce ne, eve n though a blo o d y t o we l wa s visible in the crime sce ne photogr aphs. Althoug h he had no memory of discussing the towel with the petitioner, B arr ett ag ree d that th e pr e se nc e of

the pe tit ion e r’ s b loo d w ou ld h a ve ma de him “ op tim ist ic abo ut a

se lf defens e theory .” I n addit i o n , Ba rrett admitted that he did not investigate whether the victim had prior convictions for a ss au l tive conduct be cause he did not think such convictions would have be en admissible.

B arr e tt b e lie ve d th a t th e e le c tr ic a l a ndte le ph on e c or ds fo un d in the bathr oo m w e re the mos t damag ing a spect of the case . Although he considere d whether to arg ue that they wer e of a n “unusual sexual nature,” he opted t o “simply stay away from it ” because there was no e vidence the victim had been tied up.

Ba rre tt testified that the petit ioner did not testify during the guilt phase bec ause the trial court had rule d that the petitioner’s prior robbery convictions wer e admissible to impeach the petitioner. Ba rre tt did not recall discussing with the petitioner whe ther the pe titioner’s dec ision not t o testify impacted a

possible self-de fense theory

.

Ba rre tt testified that the defe nse attempted to o b t ai n the lesser punishment of life with the possibili ty

of par ole. He conce ded, howeve r, that he “assumed” that the def endant’ s prior robbe ry convictions wer e crimes of “violenc e” f or the purpose of the prose cution’s ag g ravating c ircumstance but that he never rese arc hed the issue under Ohio law. I n addition, Ba rre tt admitted that he did not object to or re quest a jury instruction on the prosec ution’s use of victim impact evidenc e.
The pe titioner testified that he met with Ba rre tt four to six times prior to trial. He told trial

c ou ns e l tha t he ha d be e n dri nking wi th the vic tim un til a n ar g ume nt en su e d ove r wh e the r the vic tim had g iven him money . He told counse l that the vi ctim “rushe d” him
, and they fell ag ainst a dre sser. The pe titioner then gra

bbed a bottle, struck the victim twice in the head, and pushe d him backwa rds onto the bed. After helping the victim g et to the bathroom, he took the victim’s wallet and lef t. The pe tit ion e r t e sti fi e d th a t tria l c ou ns e l to ld h im that th e y wo uldpursu e a se lf

-d e fe ns e the ory

a t tria l.

The pe titioner said that trial counsel did not ask him about his arr est or his reque st for counsel. Trial counsel a lso did not i nterview the petitioner’s g irlfriend or any motel employ ees. The petitioner said that he did not learn about the bloody towel until it was introduced into evidenc e at trial. When he told counsel “that is my blood on that towel,” c ounsel said “it did not matter.” H e testified that trial counse l did not preparehim to testi fy o r p u rs u e self- defe nse. The pe titioner admitted that he neve r told police off icer s or trial counse l that he had be en struck in the nose and had been ble eding . Finally , the petitioner said that tria l counsel did not prepa re him to testify

during the sentenc ing pha se.

Ba rbar a Willi ams, the petitioner’s mother, stated that she testified on behalf of her son in the sentenc ing pha se of his trial. She said that B arr ett did not a sk her f or the na mes of other

mitigating witnesses or c hara cter

witnesses. She was also not a sked to te stify about her son’s bac kg round and history of alc ohol abuse.-7-

Wil liams further testified t hat at the request of t he petiti oner’ s post-conviction counse l, she obtained copie s of the victim’s prior criminal recor d. The victim had a 1993 conviction for battery in Florida a nd a 1994 ar

rest for battery in Florida. The latter c harg e wa s dismis sed.

At the conc lusion of the post-conviction hea ring , the trial court rec onsidered and g rante d the petitioner’s re quest for D NA an al y s i s of the towe l found at the c rime sce ne. The DNA testing

e sta bli sh e d th a t th e pe tit ion e r’ s b loo d w a s o n th e tow e l.

After considering the evidence and arg uments of counsel, the t rial court g rante d a new trial as to the fe lony

murder beca

use the jury was not instruc ted on the lesser- included offe nse of se cond de g re e mur de r. Th e c ou rt re a so ne d th a t Stat e v. El y , 4 8 S. W.3 d 7 10 , 7 21 (T e nn . 2 00 1) , w hic h h e ld that se c on d d e g re e mur de r i s a le sse r- inc lud e d o ff

e ns e of fe lon y mur de r, app lie d r e tr oa c tiv e ly to post-conviction ca ses. The tria l court denie d post-conviction re lief as to espe cially ag g ravated robbery , howeve r, afte r conc luding that the pe titioner was not denied the eff ective a ssistance of counsel a nd that the DNA r esults would not have af fec ted the outcome at trial.

The Co u r t o f

Crim in a l A p p e a ls a f

f irme d th e tria l c o u r t’ s ru li n g

. L ik e th e tria l c o u r t, the intermediate ap p ea l s court conc luded that sec ond deg ree murder is a lesser- included off

ense of felony murder under Ely

. The court further conclude d that Ely and S tate v. Burns, 6 S.W.3d 453, 471 (T en n

. 1999), in which this Court clarifie d the framework f or dete rmining le sser-inc luded offe nses, “enhanced the integ rity and reliability of the fac t-finding proce ss” and thus c reated a ne w constitutional rule requiring retroa ctive applicat ion. The Court of Criminal Appea ls affirme d the trial court’ s denial of r elief a s to the espec ially ag g ravated robbe ry

conviction.

We g rante d th is a

pp e a l.

AN AL YSI S

I. Post-Conviction Procedures

Pos t- c on vic tio n r e lie f “ sh a ll b e g rante d w he n [a pe tit ion e r’ s] c on vic tio n or se nte nc e is v oid or voidable be cause of t he abridg ment of any rig ht g uara nteed by the C onstitut ion of Tenne ssee or the Con sti tut ion of

the Un ite d St a te s. ” Te nn . Co de An n. § 40-3 0- 10 3 ( 20 03 ). A p e tit ion e r mus t establish the alleg ations by clea r and c onvincing evidenc e. See T enn. Code Ann. § 40-30-110(f ) (2003).

A g ro un d f

or re lie f i s w a ive d “ if

the pe tition er persona lly or thr ou g h a n atto rn e y

faile d to prese nt it for determination in any proce eding befor e a court of c ompetent jurisdiction in which the g round could ha ve bee n prese nted.” Te nn. Code Ann. § 40-30-106( g ) (2003). A g round for relief is not waived, howeve r, if it is “base d upon a constitutional rig ht not recog nized as exi sting at the tim e of tr ia l if e ith e r the fe de ra l or

stat e consti tut ion re qu ir e s r e tr oa c tiv e app lic a tio n o f that r ig ht”A gr ound for r el i ef “ i s p r evi ous l y d et er mi ned i f a cour t o f

co mp et ent jur i s di ct i on ha s r ul ed on t he meri t s af t er 1

a full an d fair h e a rin g .” T e n n . C o d e A n n . § 4 0 -3 0 -1 0 6 (h ) (2 0 0 3 ).

-8- or if “[t]he failure to prese nt the ground was the result of st ate a ction in violation of the fede ral or state constitution.” Tenn. Code Ann. § 40- 30-106(g )(1) - (2)

. 1

A trial court’s finding s of fa ct in a post-convi ct i o n proce eding are conclusive on a ppeal unless the evidenc e i n t h e record pre ponderates ag ainst them. Burns, 6 S.W .3d at 461. When

re vie wi ng fa c tua l is su e s, the app e llate c ou rt wi ll n ot re -w e ig h the e vid e nc e a ndwi ll i ns te a d d e fe r t o the trial court’s finding s as to the cr edibilityof witnesses or the weig ht of their testimony . I d.; Henley v. State, 960 S.W .2d 572, 579 (Tenn. 1997)

. W h en re v i ewing leg al issues or a mixed question of law a nd fac t, such as an ine ffe ctive assistanc e of counsel c laim, the appellate court’s revie w i s d e n o v o with no presumption of corr ectne ss. See Fie lds v. St ate, 40 S.W.3d 450, 457 (Tenn. 2001)

.

II. Lesser- Included Offe nses

Th e Sta te arg ue s th a t the tr ia l cou rt a ndthe Cou rt

of Cr imi na l A pp e a ls e rr e d in g ranti ng po stc on vic tio n r e lie f b e c a us e (a ) se c on d de g re e mur de r wa s no t a le sse r- inc lud e d of fe ns e of “ re c kle ss” felony murder, w hich was a

pplicable at the time of the petitioner’ s o ffense, and ( b) B urns did not establish a new co n stitut ional rule re quiring retroa ctive application in post -convic tion cases. The petitioner maintains that the trial c ourt and the Court of Criminal Appeals prope rly g rante d a new trial afte r conc luding that t h e j u ry should have be en instructed on the lesser- included off ense of second de g ree murder.

We beg in by revie wing the statutory definitions of felony murder and sec ond deg ree murder at the time the victim was killed on June 6, 1995. Felony murder r equire d “[a] reckless killing of another committed in the perpe t ra t i o n o f, or attempt to perpetrate any first deg ree murder, a

rson, rape , robbery , burg lary , theft, kidnapping or aircr aft pira cy .” Te nn. Code Ann. § 39-13- 202(a) (2) (Supp. 1993). S ec o n d deg ree murder r equire d a “know ing” killing of another. Te nn. Code Ann. § 39-13-210( a)( 1) (1991)

.
At the time the offe nses wer e committed, but prior to the petiti o n er ’s trial, the Court of Criminal Appeals had c oncluded that se cond deg ree murder w as not a lesser- included off ense of a “re ckless” f

elony murder. State v. G illiam, 901 S.W .2d 385 (Tenn. Crim. App. 1995) . The c ourt had re asoned:

Whe n a c t i n g r e c k l e s s l y e s t ab l i s h e s a n e l e m e n t , t h a t e l e m e n t i s a lso

established if the de fenda nt acted know ingly . Conversely , when

a c tin g kn ow ing ly

e sta bli sh e s a n e le me nt, that e le me nt i s not established if the de fenda nt acted only rec klessly

. There fore , in order to find a def

endant g uilty o f s econd-deg ree murder, an element not-9- contained in f

irst-deg ree felony

mu rder (the menta l element of “kn o w in g ” ) mu s t b e e s ta b li s h e d

. I t f

o ll o w s th a t, u n d e r

H o w ard, second- deg ree murder is not a lesser included off ense of first-deg ree felony murder.

I d. at 390-91 (c iting Howa rd v. State, 578 S.W.2d 83 (Tenn. 1979)).

Af te r G ill ia m, h ow e ve r, (andsti ll b e fo re the pe tit ion e r’ s trial )
, th i s C ou rt he ld that de fe nd a nts

are entitled to jury

instructions on both lesser-include d and lesser -g rade offe nses. See State v. Trusty , 919 S.W .2d 305, 310 (Tenn. 1996) . I n stating that “the g rade s or classes of any offe nse ar e established by

statute,” the Court g ave the following exa m p l e: “[ I ]n Tennessee Code Annotated S ec tions 39-13-201 throug h 213, the leg islature had divided c riminal homicide into the g rade s of first deg ree murder, second deg ree murder, voluntary manslaug hter, criminally neg lige nt homicide,

a ndve hic ula

r h omi c ide .” I d. Th e Cou rt e mph a size d that “ a de fe nd a nt c ha rg e d w ith a n o ff

e ns e is entitle d t o a j ury

instruction on lesser g rade s or classe s of the cha rg ed off ense supported by

the evidenc e” e ven abse nt a re quest to do so. I d.; see a lso Tenn. Code Ann. § 40-18- 110 (1997) ( A trial court must “cha

rg e the jury

as t o all of t he law of each offense included in the indictment, without any reque st on the part of the defe ndant to do so.”).

Acc ording ly , at the time of the pe titioner’s trial in April of 1999, Trustywas the c ontrolling authority on lesser- included (a nd lesser- g rade ) off enses. The trial court, howe ver, f ailed to instruct the jury on second de g ree mur d er ev en thoug h it was requir ed to do so under T rusty . See Ely , 48 S.W .3d 722-23 (noting that second deg ree murder was a lesser g rade of homicide u n d er T ru s t y ). Moreove r, trial counse l did not request the instruction or other wise pre serve the issue for direct

app e a l.

I n analy zing this issue, both the t rial court and the Court of C riminal Appea ls concluded that second de g ree mur d er wa s not a lesser -included of fenseof fe lony

murder unde r Gilliam without considering Trusty . Moreove r, both courts a pplied the later decisions afte r trial in Burns, 6 S.W .3d at 466, and Ely , 48 S.W .3d at 727. I n Burns, which was decide d on the s ame day the petitioner filed his notice of appe al, the Court clarified that an of fense is a lesser- included off ense of another if:

(a) all of its statutory

elements a

re inc luded within the statutory elements of the offe nse cha rg ed; or

(b ) i t f a ils to me e t the de fi nit ion in part (a ) o nly in the re sp e c t th a t it contains a statutory

element or

elements e stablishing

(1) a differ ent mental state indicating a lesser kind of culpability ; and/or

(2 ) a le ss s eriou s h arm

or ri sk of ha rm to the sa me person, pr operty

or public intere st; or-10- (c) it consists of

(1 ) fa c ili ta tio n of the of

fe ns e c ha rg e d o r o f an o ff

e ns e that otherwise me ets the def inition of lesse r-include d offe nse in part ( a) or

(b); or

(2) an attempt to commi t the offe nse cha rg ed or a n offe nse that otherw ise meets the definition in part (a ) or (b) ; or
(3) solicitation to commit the offe nse cha rg ed or a n of f e n s e th a t o th e r w is e me e ts th e d e f in it io n of lesser- included off

ense in pa rt (a) or (b)

.

I d. a t 466- 67

. We fu rthe r s a id that th e tr ia l c ou rt mus t f ir st d e te rm ine wh e the r “ a ny e vid e nc e e xists that rea sonable minds could ac cept a s to the lesser- included off ense” and then “ determine whether the evidence viewed in this light is leg ally sufficie nt to support a conviction for the lesser- included offe nse.” I d. at 469.

I n apply ing B urns, we later he ld in Elythat second de g ree murder, rec kless homicide, and criminally neg lige nt homicide are lesser- included off enses of felony murder. E ly , 48 S.W .3d at 721. I n that case , howeve r, we addre ssed the pre sent version of felony murder, which no long er r equire s that the killing be “ rec kless.” See T enn. Code Ann. § 39- 13-202(a )(2) (1997). We explained:

After comparing the respe ctive e lements of fe lony murder, se cond deg ree murder, r e c kle s s h o mi c id e , an d criminally

neg lige nt homicide, it a ppear s that the elements of the lesser offe nses are a subset of the

e le me nts of

the g re a te r andoth e rw ise dif fe r on ly in the me nta l st a te require d. We hold that because the mental states required f or the lesser of fense s differ

only in the level of c ulpabilityattache d to eac h in terms of seriousness and punishment, the offe nses o f second de g ree murder, r eckle ss homicide, and criminallyneg ligen t homicide are lesser- included off

enses of felony murder unde r part (b) of the Burns test.
Ely , 48 S.W .3d at 721-22 (e mphasis added)

.

I n o ur vie w, the tr ia l c ou rt

a ndthe Cou rt

of Cr imi na l A pp e a ls e rr e d in gran tin g po stconviction relief on this iss ue. At the time of the trial, the petitioner wa s entitled to an instruction

o n s e c o n d d e g r e e m u r d e r

a s a l e s s e r o f f e n s e o f f e l o n y m u r d e r u n d e r o u r d e c i s i o n i n T ru s t y. T ru s t y, 91 9 S. W.2 d at 31 0. Th e tr ia l c ou rt wa s o bli g a te d to g ive su c h a n in str uc tio n e ve n a

bs e nt a re qu e st by the de fe nd a nt. Se e id. ; T e nn . Co de An n. § 4 0- 18 -1 10 (1 99 7)

. Th e tr ia l c ou rt ’s e rr or un de r T ru sty could have been pr esente d on direc t appea l but was not. Moreove r, beca use the pe titioner’s notice-11-

of appe al was filed on the da y that Burns was dec ided, the petitioner’ s direct a ppeal would ha ve bee n in the app e llate “ pip e lin e ” fo r r e vie w u nd e r B urns . A c c or din g ly , th e iss ue wa s w a ive d f or po stconviction purposes. Te nn. Code Ann. § 40-30- 106(g ) (1997)

.

I t f oll ow s f ro m ou r h old ing th at th e tr ia l c ou rt a ndCou rt

of Cr imi na l A pp e a ls e rr e d in apply ing both B urns and Ely retroa ctively

to this post -convic tion case. A s we c larified in Ely , “[o] ur intent in formulating the Burns test was to provide tria l courts and litigants wit h a more simple and predic table method of de termining whether a particular lesse r off

ense w as included in a

g reater offe nse.” Ely , 48 S.W .3d at 719. I ndeed, pa rt (a) of the Burns test was simply a “r e-a doption” of the Howa rd statutory

analy sis test. Burns, 6 S.W.3d at 466 (citing Howa rd v. State, 578 S.W.2d 83 (Tenn. 1979) ). Part (b) of the Burns test clarified t he ana ly sis where offe nses ar e “log ically related” to the g reater offe nse, and part (c) of the Burns test clarified the analy sis whe re offe nses i n v olve attempts, fac ilitation, and soli citation. Burns, 6 S.W .3d at 466; see a lso Ely , 48 S.W .3d at 719.

Th e re is n o lang ua g e in B urns su g g e sti ng that the Cou rt fa sh ion e d a ne w c on sti tut ion a l rule for r etroa ctive application in post-conviction cases. Although both Bur ns and Elyrec og nized that the doctrine of lesser

offe nses implicated the integ rity and re liabilityof the fa ct-finding proce ss, that has long been the case . See Howa rd, 578 S .W.2d at 84-85. As we sa id in Ely , for instanc e, “our holding that the rig ht to lesser- included offe nse instructions is of c onstitut ional dimensions does not

announce a new constitutional rule.” 48 S.W.3d at 727.

Acc ording ly , we hold that the tria l court’s failure to instruc t the jury on the lesser -included offe nse of felony

murder w as wa ived for post-c onviction relief and the ana ly sis in Burns and Ely was not applicable.

III

. DN A Te sting
The pe titioner arg ues t hat t he trial court e rre d in deny ing post-c onviction relief on the g round that D NA a na ly sis e sta

bli sh e d th e pr e se nc e of the pe tit ion e r' s blo od on a tow e l f ou nda t th e c ri me
scene . The pe titioner claimed that the pr esenc e of his blood on the towel showed that he had be en str uc k b y the vic tim a nd that he a c te d in s e lf -d e fe ns e . In r e sp on se , th e Sta te ma int a ins that th e re su lts of the DN A ana ly sis did not m andate that post-conviction re lief be g rante d.

We beg in our ana ly sis of this is sue with the DNA Analy sis Act of 2001, which pr ovides that a def endant who ha s been c onvicted and se ntence d for f irst deg ree murder

ma y a t a ny tim e , f ile a pe tit ion re qu e sti ng the fo re ns ic DN A a na ly sis of any evidenc e that is in the possession or control of the prosec ution, law e n f o r c e me n t, la

b o r a to r y , o r c o u r t, a n d th a t is r e late d to the investigation or prosec utio n t h at re sulted in the judgme nt of conviction and that may

contain biolog ical evide nce.-12-

Tenn. Code Ann. § 40-30-303 (2003). A petition f or DNA analy sis may be g rante d wher e the c ourt fi nd s:
(1 ) A re a so na ble pr ob abil ity e xists that ana ly sis of the e vid e nc e wi ll p ro d u ce DN A r e s u l t s wh i ch wo u l d h av e r en d er ed t h e p et i t i o n er 's verdic t or sentenc e more favor able if the results had be en available at the pr oc e e din g le a din g to the jud g me nt o f c on vic tio n;
(2) The evidenc e is still i n ex i s t en ce and in such a c ondition that DN A a na ly sis ma y

be c on du c te d;

(3) The evidenc e wa s never previously

subjected to DN A ana ly sis, or

wa s n ot s ub

je c te d to the a na ly sis that is no w re qu e ste d wh ic h c ou ld resolve an issue not resolved by previous ana ly sis; and

(4) The application for analy sis is m ade f

or the purpose of demonstrating innocenc e and not to unreasonably delay the execution of sentenc e or a dminist ration of justice.

Tenn. Code Ann. § 40- 30-305(1) -(4) (2003).

We a g re e wi th the tr ia l cou rt ’s c on c lus ion that the re su lts of the DN A te sti ng in thi s c a se did not warr ant post-conviction re lief. Although the analy sis established the pre sence of the pe titioner’s blood at the crime scene , that ev i d en ce al o n e did not establish the petitioner’s innoc ence of the

o ff en s es

. M o r e o v e r , t h e r es u l t s o f t h e D NA t es t i n g d i d n o tal o n e e s t ab l i s h t h at “t h e p et i t i o n er 's verdic t or sentenc e [would have be en] more fa vorable if the r es u l t s had bee n available at the proce eding leading to the judgme nt of conviction.” Te nn. Code Ann. § 40-30- 305(1).

I n addition, we ag ree with the Court of Criminal Appe als’ conclusion that the DNA Re lief Ac t do e s n ot ma nd

ate relief upon finding that a re sult is favo ra b l e t o the petitioner. The Act pr ov ide s o nly

that “ if the re su lts of

the po st- c on vic tio n D NA a na ly sis are fa vo ra ble , th e c ou rt

sh a ll order a hearing

. . . and thereaf

ter make such orde rs as a

re r equire d . . . .” Te nn. Code Ann. § 40-30- 312. The Ac t does not expr es s l y m an date post-c onviction relief in the f orm of a ne w trial upon a finding that the DNA analy sis is i n any way favor able to the pe titioner.

Acc ording ly
, we ag ree with the t rial court’s conclusion that the DN A ana ly sis did not alone mandate post-c onviction relief.

IV. Ineffe ctive Assistance of Counsel

The pe titioner next arg ues that the trial c ourt err ed in denying post-conviction relief on the ba sis of ine ff e c tiv e a ssi sta nc e of

c ou ns e l. T he pe tit ion e r a sse rt s th a t tria l c ou ns e l w a s in e ff e c tiv e in-13-

(a ) f a ili ng to r e qu e st a

jury ins truc tio n o n s e c on d d e g re e mur de r, (b ) fa ili ng to de ve lop a re a so na ble trial strateg y

on self-de fense , (c) failing to develop a r easona ble trial s trateg y

on intox ication, (d) f a i l i n g t o i n t e r v i e w w i t n e s s e s , ( e ) f a i l i n g t o o b

j e c t d u r i n g v o i r d i r e , ( f ) f a i l i n g t o o b

j e c t to photogr aphs, and ( g ) fa iling to re sear ch the pe titioner’s prior robbe ry conviction s u n der O hio law or to object to victim impact testimony during sentenc ing. T he State ar g ues that the trial court a nd the Court of Criminal Appea ls properly concluded that the petitioner wa s not denied the e ffe ctive assistance of counse l.

To est ablish ineffe ctive assistanc e of c ounsel under theSix th Amendment to the United States Consti tution and article I
, section 9 of the Tenne ssee Constit ution, a petitioner must show that counsel’s pe rformance was de ficient a nd that the deficiency prejudice d the def ense. Strickland v. Washington, 466 U.S. 668, 692 (1984); Goa d v. State, 938 S.W .2d 363, 370 (Tenn. 1996) . A pe tit ion e r’ s f

a ilu re to p ro ve e ith e r the de fi c ie nc y or the pr e jud ic e pr on g pr ov ide s a

su ff ic ie nt b a sis to deny relief on the ineff

ective a ssistance c laim. Strickland, 466 U.S. at 692.

To pr ov e a de fi c ie nc y in co un se l’ s per fo rm a nc e , a pet iti on e r mus t sh ow that c ou ns e l’ s a c ts or omissions were so se rious that they fell below an objective standa rd of r easona

bleness under preva iling professional norms. S trickland, 466 U.S. at 688; B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) . As this Court has observed:

[T]he a ssi sta nce of

c ou ns e l r e qu ir e d u nd e r the Sixth A me nd me nt i s counsel re asonably

likely to rend e r an d r e n d e ring rea sonably

eff ective

a ssi sta nc e

. I t is a

vio la tio n o f this sta nd ardfo r d e fe ns e c ou ns e l to d ep ri v e a c riminal defe ndant of a substantial defe nse by

his own ineffe ctiveness or

incompetenc e. . . . Def

ense counsel must perf

orm at least a s well as a la wy er w ith ordinary training and skill in the

c ri min a l la w a ndmus t c on sc ie nti ou sly pr ote c t hi s c lie nt’ s in te res ts, undefle cted by

conflicting considerations . . . .

I d. at 934-35 (quoting Be asley v. United States, 491 F.2d 687, 696 ( 6 t h Cir. 1974) (citations omitted)). I n revie wing counsel’s c onduct, a “fair a ssessment . . . require s that every eff ort be made to eliminate t h e dis torting e ffe cts of hindsig ht, to reconstruc t the circ umstances of counsel’s challeng ed conduc t, and to e valuate the conduct f rom counsel’ s perspe ctive at the time.” Strickland, 466 U.S. at 689.

To e sta bli sh that a

de fi c ie nc y re su lte d in pr e jud ic e , a pe tit ion e r “ mus t sh ow that th e re is a

rea sonable proba

bilitythat, but for counse l’s unprofe s s i o n al er rors, the r esult of the proc eeding would have been differ ent. A rea sonable probability is a probability sufficie nt t o u n d er m ine confide nce in the outcome.” I d. at 695. I n short, a petitioner must establish that the def iciency of counsel wa s of such a

deg ree that it de prived the defe ndant of a fair trial and ca lled into question the reliability of the outcome . Burns, 6 S.W .3d at 463.-14- a. L esser -I ncluded Of

fense I nstruction

We first addre ss whether

the petitioner’s counsel was ineffe ctive for failing to reque st a jury ins truc tio n o n s e c on d d e g re e mur der. As di sc us se d e arl ie r i n th is o pin ion , th e tr ia l c ou rt faile d to instruct the jury

on second de g ree murd er as a lesser off ense of felony murder. Mor eover , trial counsel failed to reque st suc h an instruction, f ailed to ra ise the issue in a motion for a new tria l, and failed to other wise pre serve the trial court’s err or for appea l.

At the post-conviction hea ring , trial co u n sel, L ionel Ba rre tt, testified that he had " no independe nt memory as to why [second deg ree murder w as] not charg ed in instructions as a lesse r inc lud e d o ff

e ns e of fe lon y mur de r. ” B arr e tt f

urthe r a dmi tte d that “ it wo uldbe

. . . p re tty dif fi c ult to find a c ase in whic h second de g ree would . . . not be a pa rt of a f irst deg ree .”

We c onclude that counsel was defic ient in failing to reque st an instruction on second de g ree
mur de r an d in fa ili ng to pr e se rv e the iss ue fo r ap pe a l. At the tim e of the pe tit ion e r’ s off

e ns e , felony murder r equire d a “r eckle ss” killing in the commission or the attempted co m m i s s i o n of an

enumer ated f

elony , Tenn. Code Ann. § 39- 13-202(a )(2) , and sec ond degre e m u rd er require d a “knowing k i l l i n g o f an other.” Tenn. Code Ann. § 39- 13-210. More over, at the time of the pe tit ion e r' s trial
, the trial court was require d to instruc t the jury on second de g ree murder a s a lesser g rade offe nse under

this Court’s decision in Trusty

. 919 S.W .2d at 310. Althoug h the trial court was require d to instruct the jury on this lesser offe nse eve n without a reque st by counsel, see Tenn. Code Ann. § 40-18-110, trial counsel failed to object, failed to raise the err or in a motion for ne w trial, and failed to take any

other step towa

rd pre serving the issue for a ppeal.

We a lso c on c lud e that c ou ns e l’ s d e fi c ie nc y wa s p re jud ic ia l. A s th e tr ia l c ou rt sp e c if ic a lly found in the post-convic tion procee ding, the evidenc e at tria l supported an i n s t ru ct i on on second deg ree murder: “ Given the facts in this case , including the petitioner' s statement t o the police, a nd the sce ne of the crime, a

rea sonable juror

might conc lude that the petit i o n er wa s g uiltyof sec ond de g r e e m u r d e r

. ” S e e S t a t e v

. A l l e n , 6 9 S

. W

. 3 d 1 8 1
, 1 8 9 ( T e n n

. 2 0 0 2 )

. A s a r e s u l t , t h e f a ilu re to ins truc t on se c on d d e g re e mur de r a s r e qu ir e d at the tim e un de r Trus ty wo uldha ve be e n r e ve rs ibl e
err or on direc t appea l if the issue had be en pre serve d.

I n addition, had the issue bee n prese rved a nd raised on a ppeal, the pe titioner’s direc t appea l would have be en in the appe llate “pipeline” for r eview under Burns. As discussed above , second deg ree murder is a lesser- included offense of the present version of felony murder unde r B urns. See Ely
, 48 S.W .3d at 720. Moreove r, sec ond deg ree murder w as also a le sser-inc luded offe nse of the fo rm e r v e rs i o n o f f

e l o n y m u r d e r b e c a u s e t h e m e n t a l s t a t e f o r f e l o n y m u r d e r w a s t h e “ i n t e n t ” to commit the underly ing f

elony (re sulting in a re ckless killing) , and the menta l state for se cond deg ree
mur de r w a s a

“ kn ow in g” k il li ng. As a re su lt, se c on d d e g re e mur de r h a d a “ dif fe re nt m e nta l st a te indicating a lesser

kind of culpability ” than did the f ormer ve rsion of fe lony

murder. See Burns, 6 S.W .3d at 461; see a lso Ely , 48 S.W .3d at 720-21. Since the evidenc e supported an instruction on

se c on d de g re e mur de r, the failu re to ins truc t on se c on d de g re e mur de r wo uld ha ve be e n r e ve rs ibl e
err or under

Burns.-15-

Acc ording ly , we c onclude that trial counsel was defic ient in failing to preserve this issue and that the def

iciency was pre judicial to th e p et i t i o ner. We ther efor e re mand for a new tria l on the offe nse of f

elony murder.

b. Se lf -D e fe ns e

We n e xt ad dr e ss w he the r p e tit ion e r’ s c ou ns e l w a s in e ff e c tiv e in f a ili ng to a sse rt

se lf -d e fe ns e as a tria l strateg y

or re quest a jury

instruction on self-de fense

. At the post-conviction hea ring
, trial counsel testified that his strateg ies at trial we re to “ defe at the under ly ing f

elony ” for

felony murder and to show that the victim had di ed fr om acute a lcohol poisoning. Counsel testified that the pe titioner told him that he and the victim had an ar g ument and that th e vic tim

“ ru sh e d” him . Co un se l als o kne w that th e pe tit ion e r h a d to ld p oli c e of fi c e rs the se fa c ts. Cou ns e l te sti fi e d, ho we ve r, that th e pe tit ion e r d id n ot t e ll h im h e ha d b e e n s truc k in the no se
or that he ha d b le d. Cou ns e l a c kn ow le dg e d that hewo uldha ve be e n “ op tim ist ic ” abo ut s e lf -d e fe ns e had he know n about the bloody towel and the prese nce of the petitioner’s blood at the crime sc ene.

Th e pe tit ion e r l ike wi se te sti fi e d th a t he tol d p oli c e of fi c e rs a ndtr ia l c ou ns e l th a t th e vic tim ha d “rus he d” him a ft e r an arg ume nt. Th e pe tit ion e r te sti fi e d tha t tria l c ou ns e l to ld h im the y wo uld raise se lf-def

ense at trial. The pe t i t i o n er a cknowledg ed that he did not tell police of fice rs or trial counsel that he had be en struck in the nose or had ble d. He none theless asserted that trial counse l should have discove red the bloody towel and ha d the DNA te sting pe rformed bef ore tria l.

I n deny ing r elief on this issue, the trial c ourt fo u n d t h at it “could not re concile” the pe tit ion e r’ s te sti mon y

du ri ng po st- c on vic tio n w ith his prior state me nts :

Twice befor e the pe titioner had a f ull opportunity to te ll his st ory and twice be fore he fa iled to mention the punch in the nose. To the police in I ndiana at the time of his a rre st a ll he said to expl ain the alter cation was ‘the n one thi ng led t o another ’ and in the s entenc ing phase of the trial all he said wa s ‘he r

ushed me.’

Th e tr ia l c ou rt the re fo re a c c re dit e d c ou ns e l’ s te sti mon y that th e pe tit ion e r d id n ot t e ll h im a bo ut h is b lo o d y n o s e

. I n a d d it io n , a f

te r d e tail in g th e n a tu r e o f

th e a tt a c k

o n th e v ic ti m an d th e v ic tim’s defe nsive wounds, the trial court f ound that the petitioner’s te stimonyat post-conviction could not be re conciled “with the condition of the victim and the bathroom where he wa s found.” F inally , the trial court sai d t h at s elf-de fense did “not authorize beating the vic tim to death.” The Court of Cr imi na l A pp e a ls a g re e d w ith the tr ia l c ou rt ’s fi nd ing s.

Th e e ff e c tiv e a ssi sta nc e of

c ou ns e l ne c e ssa

ri ly re qu ir e s c ou ns e l to “ c on du c t app ro pria te investigations, both factual and le g al,” a nd to assert de fense s “i n a prope r and timely manner .” B a xter , 5 23 S.W. 2da t 93 2, 93 5. As the Un ite d Stat e s Supr e me Cou rt ha s said, “ c ou ns e l ha s th e du ty to m ak e re as onable investig ations or to make a rea sonable de cision that makes particular-16-

investigations unnecessa

ry .” Strickland, 466 U.S. at 691. Counsel’s conduct must be “ assessed f or
rea sonablene ss in all the circumstanc es, applyin g a hea vy measure of def

ere nce to c ounsel’s judgme nts.” Burns, 6 S.W .3d at 462.

The de fense of self-de fense provides that “[a] person is justified in threatening or using forc e
a g a ins t a no the r per so n w he n a ndto the de g re e the pe rs on re a so na bly be lie ve s th e fo rc e is immediately

nece ssary

to protect a g ainst the other’ s use or attempted use of unlawf ul force .” Te nn. Code Ann. § 39-11- 611(a) . “The person must have a reas o nable be lief that there is an imminent dang er of death or serious bodily

injury ” and the “dang er c reating the be lief of imm inent death or serious bodi ly injury must be real, or honestly believed to be real at the t ime, and mus t be founde d upon rea sonable g rounds . . . .” I d.

We conclude that trial counsel wa s deficie nt in failing to inve stigate and a ssert self- defe nse. Trial counse l admitted that he knew that the petitioner told police that he and the victim had arg ued, that the victim ha d “rushe d” him, a nd that he and the victim ha d fallen into a dr esser . Trial counse l

a lso a dmi tte d th a t th e pe tit ion e r t oldhim the sa me ve rs ion of

the e ve nts . A lth ou g h th e pe tit ion e r d id not me ntion his bloody nose, rea sonably diligent counsel would have inferr ed g roun d s fo r selfdefe nse fr om the arg ument betwee n the petit ioner and the vi ctim and fr om the petitioner’s c onsistent

a lle g a tio n th a t he ha d b e e n “ ru sh e d” by the vic tim . M or e over, rea so na bly dil ig e nt c ou ns e l w ou ld have c onducted a dditional investigation to vig orously pursue that strateg y

.

We further conclude that the petit ioner presented evidence in the pos t-conviction proc eeding to establish that counsel’s de ficienc y was pre judicial. A self- defe nse cla im wo u l d have be en
corr oborate d by

evidenc e of the bloody

towel with the petitioner’s blood found at the scene . I ndeed, blo od -s ta ine d tow e ls a

re vis ibl e in t wo of

the c ri me sc e ne ph oto g ra

ph s. I n a dd iti on , th e se lf

-d e fe ns e claim would have be en further c orrobor ated by evidenc e of the victim’s prior conviction for battery in Florida. Contra

ry to counsel’s testi m ony

in post-conviction, case law at the time of the petitioner’s trial e s t ab l i s h ed that the petitioner need not ha ve bee n awa re of the victim’s prior offe nses to a

rg ue that the victim wa s the first ag g ressor. See State v. Ruane, 912 S.W.2d 766, 779 (Tenn. Crim. App. 1995) . I n sum, trial counsel’s failure to pursue self-def ense prevente d the jury from conside ring the re levant circumstance s of the off enses a nd more proba

bly than not aff

ecte d the outcome of the trial.

I n r e a c hin g the se c on c lus ion s, we dis a g re e wi th the tr ia l c ou rt ’s c on c lus ion that se lf -d e fe ns e was inapplica

ble bec ause de adly

forc e wa s not justi fied. Instead, a jury proper ly instructed on the law o f s e lf

- d e f e n s e w o u ld h a v e b e e n r e s p o n s ib le f o r d e te r mi n in g w h e th e r th e p e ti ti o n e r h ad a

rea sonable a

pprehe nsion o f i m minent death or se rious bodily injury and if so, whe ther the pe tit ion e r’ s a c tio ns a mou nte d to se lf - de fe ns e . We a lso dis a g re e wi th the Cou rt of Cr imi na l A pp e a ls’ conclusion that self- defe nse wa s inapplicable aga i n s t a felony murder c harg e. F or the re asons discussed above , trial counsel’s defic ient perf ormanc e resulted in the failure to instruct the jury on the le sse r o ff

e ns e of se c on d d e g re e mu rder – a c ha rg e a g a ins t w hic h s e lf

-d e fe ns e is e nti re ly appropriate for

the jury ’s consider ation.-17-

Acc ording ly , we c onclude that tria l counsel was defic ient in failing to pursue and a ssert selfdefe nse as a

defe nse and that the petitioner wa s prejudice d as a result. The case must therefor e be

rema nded for

a new trial on both the felony murder and espec ially

ag g ravated robbe ry

char g es.

c . Into xicatio n D e fe ns e

We ne x t a ddress whether trial counsel was ineffe ctive in f ailing to de velop an intoxi cation defe nse and in failing to re quest a jury instruction on intox ication.

Evidence of a de fenda nt’s intox ication is re l ev an t to neg ate a culpable me ntal state of a char g ed off

ense. S ee T enn. C ode Ann. § 39- 11-503(a ) (2003) . Although f elony murder in the pr e se nt c a se re qu ir e d a “ re c kle ss” kil lin g , e vid e nc e of int oxic a tio n may

ha ve be e n a dmi tte d to ne g a te the int e nt r e qu ir e d in c omm itt ing the fe lon y un de rl y ing a

fe lon y mur de r c ha

rg e . Se e Sta te v. B ug g s, 995 S.W .2d 102, 107 (Tenn. 1999)

. Although the issue is fairly close, we cannot c onclude that tri al co unsel was de ficient for failing to investigate and raise the issue of intox ication. On one hand, trial counsel was a war e that the petitioner tol d police officer s that he wa s “drunk” at the time of the inc ident with the victim, and the c ri me sc e ne ph oto g ra ph s r e ve a le d th e pr e se nc e of n um erou s bee r c a ns a ndliq uo r b ott le s. Moreove r, trial counse l testified that his primary strateg y was to “ defe at” the under ly ing f elony for felony murder, a

strateg y that may have been aided by an int ox ication defense. On t he other hand, there was no e vidence that the petitioner wa s so intoxicated as to impair his me ntal state. I ndeed, the petitioner told police off icer s his version of the e vents that day and later t o l d trial counsel the

sa me ve rs ion

. Al tho ug h the tr ia l trans c ri pt re ve a ls that the pe tit ion e r el e c te d not to t e sti fy in the g uil t phase of the trial, he testified and related his ve rsion of the events during the sentenc ing phase. A t

no po int did the pe tit ion e r a sse rt

that he la c ke d in te nt o r that he didno t r e c a ll the e ve nts du e to h is le ve l of imp a ir me nt. Th e pe tit ion e r al so int ro du c e d n o e vid e nc e du ri ng po st- c on vic tio n th a t w ou ld ha ve su pp orte d th is d e fe ns e . A c c or din g ly , w e c on c lud e that tria l c ou ns e l w a s n ot i ne ff e c tiv e in this reg ard.

d. Fa iling to I nterview Wit nesses

We n e xt turn to the pe tit ion e r’ s a rg ume nt that tria l c ou ns e l w a s ine ffect iv e fo r f a ili ng to interview w itnesses. I n particula r, the petitioner a

rg ues that trial counse l should have interview ed the ca b driver, othe r motel employ ees, a nd his girlf riend at t h e t i m e of the off enses. The se three wi tne sse s, ho we ve r, didno t tes tif y a t the po st- c on vic tio n h e ari ng . A c c or din g ly , th e pe tit ion e r d id not prove e ither that trial counse l was def icient or that he was pre

judiced as a

result.

e. Voir D ire

The pe titioner asserts that trial c ounsel was inef fec tive for f

ailing to objec t to numerous comments made by

the pr o s ec u tor during voir dire. In particula r, the pe titioner notes that trial counsel did not object whe n the prosec utor ref err ed to the victim a s a “g ood g uy ” and a “murde r”-18-

victim who had bee n “cut to shre ds.” Tria l counsel said that he did not objec t because he pre fer red to reserve objec tions for issues that are “moder ately signific ant.”

Although w e caution that attorney s must be temperate and not inflammatory during voir dire,

w e c a n n o ts e c o n d

- g u e s s tr i a l c o u n s e l ’ s b a s i s f o r n o to b j e c t i n g t o t h e p r o s e c u t o r ’ s c o m m e n t s

. In addition, the petitioner has not shown that the defe nse was prejudice d, that he wa s forc ed to ac cept a juror that was prejudiced against him, or t hat any other harm resulted from counsel’s c onduct. As

a re sult, the petitioner has fa iled to show deficie ncy or pre judice.

f. Crime Scene Photogra phs

The pe titioner next asserts that trial counsel wa s ineffe ctive in fa iling t o o bject to the admission of crime sc ene photog raphs. The photogr aphs showed the vi ctim ly ing in the motel r oom bathroom wit h his head over the toilet. Other photogra phs showed the injuries to the victim’s fac e and head. Trial c ounsel testified that he sa w the photog raphs be fore trial and be lieved they wer e rele vant to support the State’s theory of the offe nse. As a result, he saw no meritorious basis upon which to object to their a dmission at trial.

The a dmissibi li ty

of photog raphs is left to the discr etion of the trial c ourt. See State v. Carter , 114 S.W .3d 895, 902 (T en n

. 2 0 03). Even photos that a re g raphic or g ruesome may be

a dmi tte d if

the y are re le va nt t o a

ma te ri a l is su e a t tria l a ndthe ir pr ob a tiv e va lue is not su bs ta nti a lly outweig hed by

the risk of unfair prejudice . See Te nn. R. Evid. 403. I n this case, we ag ree with the trial court and the C ourt of C riminal Appea ls that the petit ioner has failed to show that trial counse l

wa s d e fi c ie nt i n th is r e g ardor that th e pe tit ion e r w a s p re jud ic e d a s a

re su lt.

g . Se nte nc ing Pha se
Finally , the petitioner a

rg ues that t rial counsel was ineffec tive with reg ard to the se ntencing phase in w hich the prosec ution soug ht the punishment of life without pa role. I n particu l ar , the pe tit ion e r a sse rt s th a t c ou ns e l fa ile d to inve sti g a te his prior ro bb e ry c on vic tio ns un de r Oh io l a w t o de te rm ine wh e the r the statut ory e le me nts in vo lve d v iol e nc e to a pe rs on a ndfaile d to ob

je c t to “victim impact” testimony

.

Be cause we ha ve conc luded that a ne w trial must be held on fe lony m u rd er, the issues relating to trial c ounsel’s per formanc e in the sentencing phase need not be addr essed. How ever , we opt to make a f

ew c omments for g uidance in the eve n t t h e p et i t ioner is ag ain convicte d of fe lony murder and a new sentenc ing pr ocee ding is he ld.

The prose cution relied upon the ag g ravating c ircumstance in Tennesse e C o de Annotate d section 39-13- 204(i)(2) , which states t h at “ th ed e f

e ndant was pr eviously

convicted of

one (1) or more felonies . . . w h ose statutory elements involve the use of violence to the person.” As the Court of Criminal Appeals noted, the O hio rob b er y s t atute stated that “[n] o person, in attempting or-19-

committing a thef

t of fense
, . . . or in f

leeing afte r such attempt or offe nse, shall use or thr eate n the immediate use of f

orce ag ainst another.” Ohio R.C. Ann. § 2911.02(A)(1987) (empha sis added).

I n apply ing the (i)(2) ag g ravating c ircumstance , this Court has stated that some offe nses may
re q u i re ev i d en ce o f t h e c i rc u m s t an ce s u n d er l y i n g t h e p ri o r c o n v i ct i o n : “W e h o l d t h at t h e t ri al j u d ge must nece ssarily examine the facts underlying the prior felony if the statutory elements of that felony may be satisfied e ither with or without pr oof of violence.” State v. Sims
, 45 S.W .3d 1, 11-12 (Te nn. 2001). B eca

use the pe titioner’s i n i tial trial was held be fore Sims was de cided, a ny subsequent sentenc ing he aring in w hich the prosec ution r elies upon the (i)( 2) ag g ravating c ircumstance shall be held in acc ordanc e with these pr ocedur es. I d.

Simi larly , in analy z i n g the admissibilit y of victim impact evidenc e, this Court has emphasized that such proof must be limi ted to

information desig ned to show those unique c hara cteristics which pr o v id e a b r ie f g li mp s e in to th e li f e o f th e in d iv id u a l w h o has bee n killed, the contempora neous and pr ospective c ircumstance s
s u rr o u n d in g a n in d iv id u a l’ s d e ath
, a n d h o w th o s e c ir c u ms tance s financ ially , emotio n a ll y , p s y c h o lo g ic ally or phy sically

impacted upon members of

the victim’s immediate fa mily

. State v. Nesbit, 978 S.W .2d 872, 891 (Tenn. 1998). I n addition, the Court also cre ated pr ocedur es that require the State to g ive notice of its intent to use victim i mpact evide nce and require the trial

c o u r tt o h o l d a

j u r y o u th e ar i n g t o d e t e r m i n e t h e a d m i s s i b i l i t y o f t h e e v i d e n c e

. Id

. A c c o r d i n g l y, these proc edure s should be followed in the e vent the petitioner is ag ain convicte d of fe lony murder and a ne w sentenc ing is he ld.

CO NC LU SION

After due consideration, we conclude 1) that State v. Burns did not cre ate a new constitutional rule that must be retroa ctively applied to post-conviction cases, 2) that the petitioner was not entitled to a ne w trial or other relief based o n DN A results , and 3) that the petitioner wa s denied his constitutional rig ht to effe ctive assistanc e of c ounsel. Acc ording ly , the judg ment of the Court of Criminal Appea ls is rever sed, and the case is remande d for a new tria l on felony

murder and espec ially ag g ravated robbe ry . The c osts of the appe al ar e taxed to the State.

____________________________________ E. RILEY AN DE RSO N, JUSTI CE