### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 13 , 2003 Ses sion STATE OF TENNESSEE v. ROBERT K ERN HOLLOWAY Direct Appeal from the Circuit Court for Dickson County

No. CR5515 Allen Wallace, Judge

No. M2002-01904-CCA-R3-CD - F iled September 17, 2003

A Dickson County jury

co nv ic te d t he de fe nd an t, Ro be rt Ke rn Ho ll ow ay, of second degree murder , a Class A felony, and he

was sentenced to forty

years to be

served at 10 0% as a vi o lent offender. On appeal, he arg

ues: the e

vidence was insuf

ficient t o support his conv iction; the trial court improper ly instructed the jury re garding the mens rea element of

second degree murder; a

nd the trial court abused it s discre

tion in rul ing on his pro se motion for a new trial which alleged ineffective assistance of counsel. Upon review, we affirm the judgment of the trial court as to the defendant’s conviction but vacate its ruling as to the pro se ineffe ctive as sistance of counse

l claim. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Vacated in Part
A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined.
Mi ch ae l J . F la na ga n, Na sh vi ll e, Te nn es se e, fo r t he ap pe ll an t, Ro be rt Ke rn Ho ll ow ay. Paul G. Summers , Attorney Gene ral and Reporter; Christine M. La pps, Assist

ant Attor ney Genera l; Dan M. Alsobro oks, Distr ict Attorn ey Genera l; and Suzan

ne Lo ckert, A ssistant D istrict Att orney General, for the appellee, State of Te nnessee. OPINION FACTS Trial On March 13, 2001, a

f ight broke out between two inmates in the “B-Pod” a t the Dickson County Jail, in which the defendant, also known as “Chow Hound,” stabbed the victim, Mark Hall, multiple times with

a “shank,” or homemade knife. After the victim collapsed, the defendant called prison officia

ls over the interc om. When pr ison officials arr

ived, the victim h a d a faint pulse and2

was transported to the Horizon Medical Center emerge ncy room wher

e he later died as a result of multiple sta

b wounds.
At trial, several of

the inmate s who wer

e prese nt in B-Po d on th e day of the altercation testified to the eve

nts leading up to the

victim’s d

eath. Th at mo rn ing, prison officials were upset withthe inmates in B-Pod because they refused to clean up. Afte r sever al reque sts that the inmates clean their pod, prison officials turned off the power, deny ing the inmates televi sion and pho ne access . After the power was turned off, the victim approache d the defendant and asked to use the defendant’s shank, a

pparent ly to get to another source of electric ity to attach a wire to heat his coffee or to try and make a televis ion set ope

rable. T he defe ndant refused and told the victim to “go on and leave me alone,” or “I

want it to be over,” to which the victim replied, “[I]t’s not over” or “[I ]t’s not over with by a long

shot.” The victim then proceeded toward his bunk in another section of the pod and went to the door of the pod to r

eceive his medica

tions from

the priso n nurse. S hortly after the victim re

turned to his bunk, the defendant approached and stabbe d him with a shank. The victim was unarmed. Several of the inma

tes testif ied that, after th

e initial s tabbing , they

heard th e victim say “put the shank down, fight like a man.” The defenda nt did not put the shan k down and pr oceede d to follow the victim around several areas of the pod. Eac h time the victim stopped, the defendant stabbed him a few more times. At some point during the alter cation, t he victim a

ttempted t

o pick up a milk crate and swing it at the defe ndant. Finally, the victim collapsed ne ar the stairs and the defendant called for prison officials. Deputy Tracy Gage and Nurse Wendy

Smith, who had just administered medications to the inmates in B-Pod p

rior tothe altercation, both testified that the defendant did not inform them that he was havi ng a pr

oblem with

the victi m. They also said that, while they wer e administering medications to the inmates in C- Po d, th ey h eard the inmates in B-Pod kicking the door and screaming. Gage the

n radioed for assistance. Captain John Patterson testified that he a nd Lie utenant B ruce re sponded to Deputy Gag e’s call. Upon entering B-Pod, Patterson noticed the victim, who appear ed to have been stabbed, ly ing under the stairwell. Patterson said the victim had a “very faint pulse,” and he mov ed the victim in order to administer CPR. He accompanied the vi ct im to the hospital, where the victim later died. Patterson identified a videotape of the area where the attack occurred a nd explained in detail what was shown

on the tap e as it re

lated to th

e incide nt. Patterson also testified that it was prison policy to separ ate inmates wh o were having problems

. The separation of inmates occurs immediate ly if an inmate notifies p rison off icials, or ally or in writing, of a problem he is having with anoth

er inmate and sepa ration is autom atic f or figh ting. Patterson also stated that he had not received any

complaints from the defendant regar ding the victim before or on the d ay

of the inc ident.3

Detective B. J. Gafford of the Dickson County

Sheriff ’s Depa rtment wa s called

to the jail to investig ate the events that transpired on March 13, 20 01. Gafford t estified that a search of the shower area in the B-Pod uncovered a weapon, which he described as “a piece of plastic or ma ybe plasticand tissue

on the handle and sh arpene d on the end.” He a lso observed

two small holes in the shower curtain and found two other shanks in a vent above a urinal in the shower area. Buddy Tidwell, an investigator with thedistrict a ttorney gener al’s off ice, wa s also ca

lled to the scene to investigate. Tidwell te stified th at while he was se arching

the G-Pod , the def

endant to ld him to check the mop buckets. Tidwell discovered that two of the mop buc

kets had removable metal handles. A yellow mop bucket with a missing handle was found in a janitorial closet “right off the common area outside of

‘B’ pod.” He compared the handle of one of the buckets to the shank found in the show er and e

xplained itsresembla

nce to the shank:
It’s unique in s ize. I

t’s a bo ut, maybe, a qua

rter inch or 3/8th of an inch in diameter. It’s got a particular sort o f farro w on the e nd of it that’s peculiar to this mop bucket handle; a nd it appe ars to ha

ve some sort of black paint or e

namel and at various places portions of the paint are chipped or missing; and this description matches the de sc ri pt io n o f t ha t s ha nk ex ac tl y. Offie Johnny Dotson, an inmate housed in the B -Pod of the Dickson County Jail, testified that the defendant and the victim, who was “highly te mpered,” had been arg

uing and the defendant told the v ictim, “[Y]ou want to take something, take this.” He also said that the defenda nt “had killing in his eyes.” Dotson recounted a prior conversation that he and the defendant had, in which the defen dant stated “he was fixing to take somebody out. That he didn’t want to be back on t h e street. He wanted to spend the rest of his life in the penitentiary . . . .” Dotson also recalled telling defense counsel, prior to trial, that the victim was the agg ressor. Daniel Stindt, an inmate atthe Dicks on County Jail, also testified to the events in question and said that h

e originally

thought that the dispute was over food, but he later learne d that it was over a shank. Stindt recalled the de fendant te lling him t

hat he ha d gotten the shank

off a mop

bucket. Stindt heard th

e defendant tell t

he victim, “Do you want to take my shit? Do you

want to ste al my shit? Do you want to take thi s? Well, take th

is,” afte r which th

e defendant stab

bed the vi ctim. Stindt testified that the defendant had a “look of evil” during the altercation. He also saw the defenda nt walking

toward th

e shower area a fter the fight. Chris Hollis, an inmate at the Dickson County Jail who was bunking with the victim on the day of the murder, testifie d that he h eard the defenda nt tell the victim, “[H]ere’s your shank now ,” prior to stabbing the victim. Detective Andy

Davis of t

he Dicks on County

Sheriff ’s Depa rtment testified t hat he was calledto the cr

ime scene to loca

te any blood and

diagra m the crim

e scene. His diagram, showing th e l oc at io n o f t he bl oo d d ro pl et s i n t he po d, wa s m ad e a n e xh ib it to hi s t es ti mo ny.4

Dr. Charles Harlan, a forensic pat hologist , te stified that he performed the autopsy on the victim. He said th at the vic tim had been stabbed at least eight times in the front and at least seven times in the back, grouping three of the back wounds together. The wounds ranged from one to five inches deep. One of the stab wounds pierced the victim’s lu

ng and a nother pi erced h

is aorta causing severe interna l bleedin g. The immediate cause of death was loss of

blood cau sed by

multiple stab wounds. Dr. Har

lan also testified that the victim’s blood tested negative for the pr esence of dru gs or alcohol. The defendant then put on his case in chief. First, he called Earnest Pleasant, an inmate in the B-Podof the Dic

kson County

Jail, who testified that the victim approached the defendant seve ral times and asked to borrow his shank. Each time the defendant r efused these requests. Pleasant admi tted that, on the day of the a ltercation, he told one of the detectives that he had not seen anything. Pleasant

said that, prior thisalterca tion, he ha

d witnessed the vict

im fight t wo other people while in ja

il. Next, the defendant testified. He said that prior to the fight, the victim asked him fo r hi s shank on three separate occasions and the defenda nt refused. Then, the victim left the defendant’s area of the pod

and proc eeded to

his bunk. He stated that the victim was unarmed. Testify ing that he was a cting in self-de fense, t he defe ndant re counted t

he incide nt: And then I

looked over and I saw [the victim] standing there and whisper [sic] to [another inmate]. So at that point I thought that he was, you know, he ha d g iven me a mean look, you know; and I thought at that po int he wasdiscussin g what h e was g oing to do

to me. . . . So I just sort of lost it at that point; and ran over to him; and

–because

this has been an ong oing pro cess. He ’d been b othering me for quite awh

ile try ing to pic k a figh t; and stabbed him a couple of times. Well, then he runs [to another section of the pod]. Now I ran outbehind him, okay, not

stabbing him. I ran out behind him; and the reason I ran out

behind him

is becau se I h ad stabbed him, that’s true; butI ran out behind him in order – bec ause I didn’t know what he wa s going to do. I didn’t know if he was going to go seek a

weapon and retalia te or what, so at that p oint I stopped. He stopped and I stopped. When I stopped, I

stopped probably four

to five feet from

him

–when I stopped, he came towards me; and when he came towards me, he hadthat look in

his eyes; and he

started talking about, put the shank down, come on let’s fight, put theshank down; and he comes5 towards me. I ’m still sta nding the re at tha t point. I ’m not maki ng any eff ort to proceed forward. He’s coming towards me.

. . . . I wasn’t getting along with him t o begi n with, so w hy a m I going to lo an h im th e sh ank to st ick me w it h, s o t hen I stab bed him a couple more time [sic]. So he comes around right through here [another section of the pod]; and once again he stops and I stop. Then he came towards me and grabbe d my shirt, y ou know; and when he grabbed my shirt, he

ripped my

shirt; and I stuck him a couple more times, you know.
So then he r

uns over h

ere whe re the mil k crates were that they kept ice in; and I followed, not stabbing him, you know, I followed; and then he g

rabs the milk crat e and co mes at me

with the milk crat

e and swings the milk crate; and I blocked t he milk cr ate with m

y hand, you know; and stuck him a couple more times, y ou know; and the whole time he’s hollering, put the shank down, y ou know, come on lets fight, put the shank

down. But I stopped and he’s not making any attempt to avail himself of the situation. He’s still proceeding on the attack, you know. So anyway , he runs over

here [another

section of the pod], you know, and I followed over ther e, you know, and

I can’t remember at that point if I stuck him o

r not to be honest with you, y ou know; but then he runs over here and when he runs over here, [another section of the pod], he ’s under

the steps

. Well, there’s a table right there and I stop proba

bly about rig

ht in here

so mewher e, if I remember co rr ec tl y; and then he drops; and when he dropped, you know, I run over and hit the button to try to g et him some help, you know. The defendant also testified that he brought the shank to his pod from H-Pod and made the handle out of pla stic “pro

bably three or four nig hts prior t o [the alte rcation ].” He sa

id th at he hid the shank be

hind a milk c

rate wit hin his re ach and

retriev ed it afte

r he and the victim

had their argume nt. Motion for New Trial Hearing
At the hearing on

his motion for a new trial, the defenda nt persist ed on arg uing the claims set out in his pro se motion for new trial, that trial cou nsel had b een inef

fective , asking

the cour t to “rule on it.” The

defenda nt also as ked the c ourt to ap point him new coun sel to advise him regarding whether he should raise the post-conviction issues at the motion for a new trial, a request which the6

trial court de

nied. Defense c ounsel as ked the c ourt to re frain fr om ruling on the def

endant’ s pro se complain ts that trial counsel was ineffective, while the defenda nt argued at length that the trial court should rule on the claims. Although the trial court explained, in brief, t he danger in making an ineffective assistance of

counsel c laim in a mo tion for new trial , the defendant persisted, explaining his rationale: Well, accord ing to Ke ndricks v ersus the State, Your Honor, the wa y I re ad th is , i s m or eo ve r w e h av e p re vi ou sl y warne d defenda nts and their counsel of the dangers of r aising the issue of ineffective assistance of trial counsel on direct appeal because of the significant

amount of development

and fact finding the issue entails.
So what they’r

e sugge sting is, in my

interpre tation of t hat, is that the issues should be raised at the motion for new trial bec ause it would be difficult to raise it later on. Now what you’r

e saying is that if I raise it nowand you rule on it now, I can’t raise it later. The defendant’s trial counsel, representing him at the hearing on the motion f or new tr ia l, askedthat the tri al co urt not rule on the pro se request without first appointing additional counsel for the defendant. Acceding to the def endant’s insisting that he wanted the trial court to rule on his ineffective assistance of

counsel claims, the court did so, ruling that counsel had not been ineffective.

ANALYSIS I. Sufficiency of the Evidence The defendant argues that the evidenc e was insufficient to support his conviction for second degree murder because there was no proof that he “intended to kill the victim.” He asserts that, at most, the proof showed he was acting in self-def ense. In consider

ing this issue, we apply the f amiliar rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is “whether, af ter viewing the evidence in the lig

ht most fav orable

to the prosecution, any rational trier of fact could have found the essential elements of the crime bey ond a reasonable doubt.” Jackson v. V irginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. E d. 2d 560, 5 73 (1979) ; see also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1 992); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Findi ngs of guilt in c riminal actions whether by the trial court or jury

shall be set aside if the ev id en ce is in su ff ic ie nt to su pp or t t he fi nd in gs by t he tr ie r o f f ac t o f g ui lt be yo nd a reasona ble doubt.”) . All quest

ions involving the c

redibilit y of witnesse s, the we

ight and value to be giventhe evidence, and all factual issues are resolved by

the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 ( Tenn. Crim. App. 1987)

. “A guilty ve rdict by the jury , approved by the trial judge,7

accre dits the testimony

of the wit nesses f or the Sta te and re solves all conflic ts in favor of the theory of th e State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme cou rt stated th e rationale for this rule: This well-se ttled rule rests o n a sound foundation. The trial judge and the ju

ry see the witnesses f

ace toface, hear their testimony and observe their demeanor o n th e stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court. Bolin v. State , 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v . State , 212 Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction remove s the presumption o f inn ocence with which a defendant is initially cloaked and repla ces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant was convicted of second deg ree murder which is define d as “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-21 0(a)(1) (1997). The testimony of all of the witnesses to the alte

rcation , includin g the de

fendant , was that the victim ask ed the de fendant to use his shank, and the defendant refused. The victim then went to another area of

the pod. Thereafter, the defendant, by

his own testimony, went to find the unarmed victim and “ stabbed h ima couple

of times.” Further, the testimony of all the witnesse s, including the defendant, was that after the initial stabb ing, the victim atte

mpted to ru

n away and the de

fendant followed him. Each

time the victim stopped, the defe

ndant sta bbed him a few mor

e times. T

his proce ss repea

ted itself until the vi ctim finally collapsed. Additionally , Dr. Harlan testified that the victim died as a result o f the multi

ple stab wounds. These wounds were one to five inches dee p and three of them pierced the victim’s left lung, right lung, and aorta. Based on the evidence, a reasonable jury could have concluded from the victim’s mu

ltiple stab wound s, faci lita ted by the defend ant’s follo wing t he vic tim a fter ea ch sub seque nt st abbin g, that the de fe nd an t w as no t a ct in g i n s el f- de fe ns e b ut , i ns te ad , i nt en de d t o k il l t he vi ct im . A cc or di ng ly, we conclude that the evidence readily supports the defendant’s conviction for second deg ree murder. II. Jury Instruction The defendant argued in his motion for new trial and on appeal that the trial court erred in instructing the jury reg arding the definitions of the “knowing” mental state as it pertains to second degree murder, and that t

his erro r was n ot harmle ss b ecause it “lessen[ed] the State’s burden of proof.”8

To prove secon d degree murder, the State was required to show that the defenda nt “k no wi ng ly” killed the victim. As to “knowingly,” the trial co urt instructed the jury by reading Tennessee Code Annotated section 39-11-106(a)( 20):

“Know in gl y” means that a person acts knowingly with res pec t to the conduct or to circumstances surrounding the c onduct 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 con du ct when the

person isaware

that the c onduct is r

easonab ly certain to cause the result.
To assess this issue, we will review the opinion of this court in Stat e v. Pa ge , 81 S.W.3d 781 (Tenn. Crim. App. 2002), in w hich the d

efenda nt made sim

ilar cla ims as to the t rial court’s instruction as to “knowingly .” The juvenile defendant in Page was tried as an adult and convicted of seconddegree murder for c ausing the death of the victim by striking him in the back of the head witha baseball bat. Id. at 78 2. At trial, Page admitted he had swung the bat a t the victim, but claimedhe did

it only to in timidate him, had not intended to hit him in the head, and could not believe that he had died. Id. at 785. Defense counsel conceded that the defe ndant had hit the vic tim in the head , but arg

ued that t he defe ndant had been into xicated, w as unable to appre ciate hisconduct, and had “‘no understanding of how wrong it was . . . how severe it was at that time.’” Id. In Page , the trial cou

rt instructed the ju

ry as to “kno wingly

” by present ing three options: “(1) tha t his conduct is of a par

ticular n ature; or

(2) that a

particular circ

umstance exists; or (3) that the conduct was reasona bly certain to cause the result.” Id. at 786 (emphasis in original). On appeal, the defendant argued, as in

the present case, that the trial court lessened the State’ s burden of proof by instructing the jury that the k

nowing e lement of second d egree murder c ould be es tablished not o nly by t h e defendant’s aware

ness that his conduc t was reasonably certain to cause the result, but also by the defendant’s awareness that his conduct wa s of a particular nature or that a particular circumstance existed. Id. at 786. We agreed and remanded the case for a newtrial for the jury to be instructed that the knowing mens rea of second degree murder req uire s that the defendant have acted with an aware ness that h i s actions were reasonably certain to cause the death of the alleg ed victim. Id. at 790. Likewise, in State v. Keith T. Dupre e , No. W1999-01019-CCA-R3-CD, 2001 WL 91794, at *3 (Tenn. Crim. App. Jan. 30, 2001), the trial court had instructed as to “knowingly ” utilizing the pattern jury instruction then in effect, which provided that it was established if the person was aware “either: (1) that his conduct is of a particular nature; or (2) tha ta particular circumstance exists.” The instructions omitted the par t of t he “know ingly ” definition provi ding tha t “[a] pers on acts knowing ly

with resp ect to a r

esult of the person’s conduct when the person is awar e that the conduct is reasonably

certain to cause the result.” See Tenn. Code Ann. § 39-11-106(a)(20). The court in Dupree explained

why the instru ctional e

rror wa s not harm

less:
We are una

ble to find

harmlesse rror. The sole issue in this case was whet

her the k ill ing w as knowing or accidental. I n other9 words, the sole issue was whether the defendan t was awa re that h is conduct was reasonably

certain to cause the result. Yet, this element was not conveyed to the jury, and a lesse r standard was set forth. 2001 WL 91794, at *4.
A further consideration in the court’s determination in Dupreethat th e error in instruction was not harmless was the fact that the jury had asked the trial court

the question, “According to the law, does pointing a gun at someone else assume that the pe rson pointing the gun

‘knows’ that the gun will hurt the other person?” Id. at *5.
In State v. To ny M artin , No. W20 01 -02221-CCA-R3-CD, 2003 WL 261937, at *8 (Tenn. Crim. App. Feb. 7, 2003), perm. to a ppeal de nied (Tenn. June 30, 2003), the trial court gave instructions identica

l to those in

the pres ent appe al. The majority deter mined that the instructional error was harmless because, had the trial court given the proper instruction, the jury , considering the evi dence, would not have reached a contrary result. Id. at *9. There, like here, the d efendan t claimed self-defense. Id. The Martin court reasoned: The primary dispute in this trial was whethe r the defendant

fired his gun at the victim first or was fired up on first, p rompting him to wield his gun in self-defense. I t is undisputed that the defendant had a handgun, pulled i t out, a nd that the gun was fired and caused the death of the victim. It belies common sense to believe that, if the defendant did i ndeed fire h is gun first at clo se range , he was not awarethat his conduct was reasonably certain to result in the death of the victim

. Id. Here, the facts show that the defendant and the victim were involved in an argument. At no time during this argument or the subsequent alterc ation was th e victim armed. The defendant testified that the victim left after the argument

. Thereafter, t he defendant located the victim and “stabbedhim a coup le of time s” wit h a shan k that wasone-fou rth to three-eighths of an inch in diameter and long

enough to penetr ate the victim’s body five inches. The victim fled the area and went to another section of the pod. The defendant followed and, when the victim stopped, “stuck him a coupl e more times ”; this process repeated itself until the victim finally collapsed. The defendant stabbed the victim multiple times, piercing the victim’s right lung, le ft lung, and aorta. Given the brutality and

thoroughness of

this attack, we conclude, as did the court in Martin , that the instr

uctional error as to the definition of “knowingly ” was harmless, it being clear to t h e defendant that his conduct was rea sonably certain to result in the victim’s death. Additionally, w e notethat the trial court instructed the jury on the lesser-included offen ses o f criminally negligent10

homicide and voluntary mansla ughter and also included a self-de fense in struction . By

its verdict , the jury rejected the def

endant’ s version

of the ev ents. Thisissue is without meri t. III. Ineffective Assistance of Counsel Claim at Hearing on Motion for New Trial At the hea

ring on t he motion f

or new tr ial, the d efenda nt sough t to argue his pro se claims of ineffe ctive as sistance of c ounse l, despite his counsel’s requests that the court not rule on the claims. The defendant asserted that trial counsel was ineffective because he failed to (1) introduce evidence that the victim was a drug user; (2) impeach the credibi lity

of the Sta

te’s witnesses, specific ally

Dr. Charles W. Harlan who, according to the de fendant, was unde r inve stigation for “botched autopsy reports and other related ethical practices”; (3) inter view and present witnesses who could testify as to the tensions betwee n the defendant “and friend s of another inmate and his family members,” which was relevant, in thedefendant’s view, to the issue of weapons being in the jail; and (4) introduce character e vidence of the victim and the defendan t. The de fendant

also claimedthat his at

torney was inef fective because he advised the defendant not to raise his ineffective assistance of counsel claims during the hear ing on the motion for a new trial.
As this court has noted on a num ber of occasions, “the practice of ra ising ineffective assistance of counsel claims on direct appeal i s ‘frau ght with p eril’ since it ‘is virtually impossible to demonstrat e prejudice as required’ without an evidentiar y hearing .” State v. Blackmon , 78 S.W.3d 322, 32 8 (Tenn. Crim. App. 2001), perm. to appeal denied (Tenn. 2003). In fac

t, the defendant complains that the trial court did not afford him a fair e videntiary

hearing as he pressed his pro se ineffe ctive as sist a nce of c ounsel cl aims during the he aring o n the motion for new trial. We agree that there was not an e videntiary hea

ring as to the claims of i neffec tive ass istance of counsel; and the procedure insisted upon by the defen dant illust rates pr ecisely the probl ems in ignoring the Post-Conviction Procedure Act, see Tenn. Code An n. §§ 40-30- 201 to -310, and particularly

section 40-30-210 providing for an evidentiary hear ing o n post-con

victi on cl aims. We do not believe that the defendant’s efforts should result in his relinquishing his right to file, at the appropr iatetime, a po st-convi ction pet ition. Acc ordingl

y, w e vacat

e the ruling of

the trial court as to the defe

ndant’s c laim that tr

ial couns el was ine

ffectiv e and dir

ect that t his ruling does not ba

r his filing a post-con viction pe tition in ac cord with

the Post-Co nviction Pr

ocedure Act. CONCLUSION Based upon the foregoing authorities and rea soning, we affirm the judgment of the trial c ourt as to th e defen dant’ s conv icti on for secon d degree murde r. We v acate t he rul ing fin ding that th e defendant did not receive ineffective assistance of counsel at trial and allow the defendant to present this claim at a subsequent proceeding should he wish.

___________________________________ ALAN E. GL

ENN, JUDGE