1 We note the peti tioner uti lize s a diff

erent spell ing of

his f irst name in hi s post- convict ion peti tion f rom that used in the dire ct app eal. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs M arch 11, 2003 RODRICK JOHNSON

v. STATE OF TEN NESSEE Appeal from the Criminal Court for Davidson County No. 98-A-87 J. Randall Wyatt, Jr., Judge

No. M2002-01212-CCA-R3-PC - Filed September 2, 2003

The petitione

r, Ro d rick Johnson, appeals the denial of his petition for post-conviction relief, asserting that: (1) the post-conviction court erred by failing to make f indings a nd conclu sions as to eachissue; (2) the jury instructions provided by the trial court lowered the State's burden of pr oof; (3) the trial

court er red in not instructing as t

o the less er-inc luded off

ense of facilitation; and (4) he was denied th

e effe ctive as sistance

of counse l on appea l. We affirm the order of the post-conviction court dismissing the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A L AN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OE G

. R ILEY , J., joined.
Rodrick Johnson, Only, Tennessee, Pro Se (on appe al), and Ellswor th D. Ware, II I, Nashville, Tennessee (at trial), for the appellant, Rodrick Johnson.
Paul G. Summers, Attor ney Gen eral & Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Victor S. Johnson, III , District Attorney Gene ral; and Dan Hamm, Assistant District Attorney Gene

ral, for the appellee, the State of Tennessee

. OPINION
In November of 1998, the petitioner was convicted of second degr ee murder and sentenced to confine ment for t wenty -one y

ears. Th is court affirmed the conviction on direct appeal. See State v. Roderick Johnson , 1 No. M1999-00605-CCA-R3-CD, 2000 WL 1717542, at *4 (Tenn. Crim. App. Nov. 17, 2000), perm. to appeal de nied , (Ten n. Apr. 24, 2001). The conviction resulted from the stabbing death of William Edwin Binkle

y, a s the opini on of this c ourt set out on dire ct appea l:-2- On Oct ober 24 , 1997, between 8:30 and 9:00 p.m., Derrick and Amanda Barrett returned home f rom an evening of shopping

. They passeda vehicle parked in the apartment complex's par king lot withits windows rolled down, and they noticed an African-American infant restrained in an infant seat in the vehicle's ba c k seat. After approxima

tely 30 minutes pa ssed, they g rew concerned for the in f ant's well- being, and Der rick Ba rrett wrote down t he veh icle's license plate num

ber. Ama nda Bar rett phoned 911 to report the abandoned

child. Subsequent to Amanda Barre tt's phon e call to 911, Derrick Barrett witnessed two African-Ame rican males run out of an apartme nt, get into the vehicle, and drive away . The police checked the license

number th at Derrick Barrett copied and determined [the petitioner] to be the owner of the vehicle.
While [the petitio ner's] v ehicle w as in the p arking lot, numerous witness e s testified as to a commotion occurring in [the victim's ] se cond floor apartment. Witnesses reported hearing the sound s of th reats , plea ding, and fighting for approximately an hour. One wi tness hea

rd someone y ell, "wh

ere'smy mo ney ?" Anoth e r witness heard someone say , "where's the d ope ?" Although several residen ts phoned 91 1 throug

hout t he ordeal, they w ere told that officers were not av ailable . Accordingly , a resident phoned the victi m's mother, Francis Hampton, and informed her that her son was in peril. Hampt on arriv ed within 1 0 minutes o f the phon e call, knockedon the victim's locke d d oor, and demanded entry . She walkedback d own the ste ps to meet t

he apar tment mana

ger to procure a key to the victim's door. Suddenly, two Afr ican-American males e xited the victim's apartment, walked directly by her on t

h e steps, and ran t

o their ve

hicle. At tr ial, Hampton identified [the petitione r’s] brother , the co- defenda nt, but was un able

to identify the other male because he wore a ha t down over his face. Hampton entered the victim's apartment and found him lying on the floor

in a pool of

his own blo od. He wa s transp o rted to Vander bilt Hospi t al by e me rg en cy p er so nn el an d d ie d t hr ee da ys later. It wa s subseque

ntly determined that hi s death r esulte d f rom being b eaten a

nd stabbe d 41 times.
Id.at *1.
Initi all y, we note that the petitioner did not file a notice of appeal within the statutory limitations period. See Tenn. R. App. P. 4(a). Tennessee Rule of Appellate Procedure 4(a) requires that a notice of appeal must "be filed with and received

by t he cl er k o f t he tr ia l c ou rt wi th in 30 da ys-3-

after th e date of entry of the

judgment appealed from." The de adline for the filing of the notice of appeal was March 28, 2002, and the petitioner filed his notice of appeal on May 2, 2002. The timely filing of a notic e of appe al i s no t, however, a prerequisite to the jurisdiction of this court. The requirement

ma y be waive d in the interest of justice. Id. ; State v. Scales , 767 S.W.2d 157, 158 (Tenn. 1989). Here, the record establishes that the attorney who w as appointed to represent the petitioner in the post-conviction court did not file either a notice of appeal or a

motion to withdraw as counsel after thedismissal of the petition by the post-conviction cour t. See Tenn. Sup. Ct. R. 13, § 1(i). The petitioner

asserts that he filed a pro se notice of appeal immediately upon learning that the dismissal of his petition had not been appealed. Under these circumstance s, we conclude that the interest of justice requires that the timely filing of the notice of appeal be waived. I. Completeness of Findings and Conclusions by the Post-Conviction Court
The petitione

r’s firs t claim on a

ppeal is that the trial court did not make findings of fact and conclu sions of

law as to each issue raised; and, therefor e, this court should reverse the order of dismissal of the pos t-conviction petiti on and re mand for a deter mination a s to each

issu e. I n reviewing this issue, we first will set out the complicated course of this matter thr ough both postconviction hearing s and the d ifficult y in identifying e

xactly which issues were

to be determined by the cour t. Pro Se Petition
The pro se petition for post-conviction relief, bearing a cle rk’s stamp of May 7, 2001, se t out the following claims, which we denominate as did the petitioner.
Ground I – I

neffective Assistance of Counsel
Trial counsel was ineffective by failing to: (A) seek a mistrial because of introduction of a “dying declaration” of the victim; (B) request an in struction as to the weight to be given such a declaration; (C) raise in the motion for new trial or o n appea l the cour t’s failu re to properly instruct as to the dec laration ; (D) ra ise in the motion for new trial or on appeal that the instructions as to the burden of proof were misleading; (E) object to or raise in the motion for new trial or on appeal that the trial court’s instruction as to criminal responsibility was err oneous; and (F) object to or raise in th e motion for

new tria l or on app eal that t

he trial c ourt allow ed “irr elevant and prej u dicial bloo d evidence to be introduced in trial.”

Ground II – Trial Court Errors as to Instructions Given
Th e petitione

r was de nied a fa ir trial b ecause

of an er roneous “

burden o f proof”ju r y instruction and an erroneous criminal responsibility instruction, the latter

hav ing the effect of directing a verdict aga

inst him.-4- Ground II I – Trial Court Errors as to I nstructions Not Given
The trial court failed to instruct the jury as to facilitation and “all lesser included offenses.”
First Amended Pet

ition Filed by Appointed Counsel Appointed counsel filed an amended petition for post-conviction re lief on July 12, 2001, claiming that the tr

ial court erred (1) by

admitting the victim’s statement to his mother as a dy ing declaration; (2) by

“over- relianc e” upon c ircumsta ntial evid ence; ( 3) by

refusin g to instr

uct as to facilitation of felony murde r; and (4) in sentencing the petitioner to twenty-o n e y ears. Th us, all errors raised by post-c onviction counsel in the amended petition were as to actions or inactions by the trial court. No claims were made in the first amended petition as to ineffective a ssistance of counsel.
First E videntiar y Hearing
A tan evidentiary

hearing on September 19, 2001, at which trial counsel testified, the petitioner stated to the post-conviction court that he did not agree with the issues his appointedpostcon viction counsel h ad prese nted in the

amended petition a

nd had wis hed to re

tain the c laims o f ineffective ass istance of counsel, set out as Grounds I and II I in the pro se petition, as well as “another ground . . . about the jury instructi on.” The

post-con viction c ourt cont

inued the matter to al low the petitioner and post-conviction counsel to work out which issues were to be ar gued, advising the petiti oner tha

t the claims set out in

his pro se petition had not been waived. Second Amended Petition Filed by Counsel
The record

on appea l does not i nclude a

copy of th is pleading, which is described by the petitioner, in a subse quent pro se motion filed in January2002, as having raised only “the claim of ineffective assistance of counsel.”
Pro Se Motio n to Pre serve C laims
After the first evidentia

ry hearing and appa rently because of dissati sfaction

withcounsel’s secondamended petition, the petitioner filed a pro se motion in January 2002 asking that “Grounds II and I II ” of his pro se post-conviction petition be preserved. Thus, the status of the contentions at that point appeared to be that the claims of ineffective a ssistance of counsel raised in the pro se petition had bee

n replac ed by

those set outin counsel’s second amended petition, and that Grounds II and II I, which the petitioner himself first had ra ised, still were being pressed.
Second Evide

ntiary He aring
On Februa

ry 6, 2002, a

second e videntia ry hearing was held , with

both trial counsel and the petitioner testifying. At

the hearing, post-conviction counsel questioned trial counsel and both he-5-

and the petitioner argued the claims set out in the various post-conviction pl ea di ng s. Su bs eq ue nt ly, in this opini on, we will set out the testimony

and arg uments.
As his first issue on appeal, the petitioner argues that the trial cour t made findings of fact

and conclusions of law only as to the c lai ms of inef fective assistance of counsel, but not as to the additional claims he

had rais ed in the o

rigina l pro se petition. Thus, accord ing to the petitioner’s argume nt, the orde

r dismissin g the po st-convi ctio n petition should be reversed and the matter remande d for fin dings and conclus ions as to a ll issues.
As we understand

the various pleading s and the a rgumen ts at the po st-convi ction hea rings, there was substantial over lap of the petitioner’s arguments and those of post-conviction counsel. The petitioner’s complain

ts, set out a s GroundsII

and I II in his pro se petition, were alleged errors of the trial court, th at the court erred in its instr uctions by

use of the

phrase, “or either of them,” when instructing as to second degree murder; in its instructions as to criminal responsibility ; and in not instructing the jury

as to facilitation. The inef fective assistanc e of coun sel compla ints, made by p ostconviction counsel in the second amended petition, and as explained by the petitioner in his brief, were that trial counsel was ineffective by not raising as issues on appeal that the trial cou rt erre d both in concluding that the victim’s statement to his mother was a dy ing declaration and by

not instructing the jury as to fac i litatio n. In its findings of fact a nd conclusions of law, the post-conviction court expressed the primary issues as be ing that appellate counsel was ineffe ctive in not raising the cl aims that the trial cou

rt erre d in its instr

uctions to separa tely consider “the cul pability of each defenda nt” and by not instructing as to fa cilitation. As to the two claims, the post-conviction court determined in its written finding s and conclusions th at trial c ounsel wa s not inef fective as to thes e matters but didnot determine whether thecourt itse lf, then a cting a s the tria

l court, erred a s to the sa

me matter s. Ad di ti on al ly, the post-conviction court stated in its findi ngs that

other cl aims raised in the various pre-hearingpleadings filed by the petitioner and his counsel, including admission of the victim’s statemen tas a dying

declaration, “over reliance by the jury on circ

umstantial evidence,” and th e proprie ty of the petitioner’s sentence, “were not e mphasized or argued

at the hearing.” The court determinedthat the “

petitione r’s rema ining cl aims which are ra ised in his p etitions a

re without merit.”
The responsibility of the post-conviction court as to making written findings and conclusions is set out in

Tenness ee Code A

nnotated section 4 0-30-211 (b), whic h provide s: Upon the fina

l dispositio n of ever

y pe tition, the court sha

ll e nter a final or der, an d except where proceedings for de layed appe al are allowed, shallset forth in the order or a written memorandum of the case all gro unds presented, and shall state the findings of fact a nd conclusions of law with regard to each suc h ground.
The petitioner argues that the post-conviction court did notmak e fi ndi ngs as t o Gr oun ds II and II I, wh ich he ha d raised in his pro se petit ion, these being, as we have stated, that the trial court had erred i n its jury

instructi ons as to itsuse of the phrase “ or eit

her o f them;” in its char

ge as to-6-

criminal responsibility; and in not instructing as to fac i litat ion. While it is corre ct that the

postconviction court

did not make express f

indings a nd conclu sions as to

the spec ific cla

ims set out i n Groun ds II

and I II , it was not

entirely clear, as we view the post- convicti on hearings, th at th e petitioner intended that some of the same claims be presented as both errors of the trial court and of appella te counsel. We note tha t t he post-conviction court did rule on the claims of error in the instructions to the jury . How ever, this was done in the context of whether trial counsel was ineffective and not as to whether the trial court a lso had erred in this regard.
This court determined, in State v. Swanson , 680 S.W.2d 4 87, 489 (T enn. Crim. App. 1984), that "the failure of the trial judge to abide by the require

ment does not

always manda

te a reversal of the trial court's judgment." I n fact, since the purpose of the requiremen t for wri tt en findings and conclusions as to each issue is to facilitate appellate review of the post-conviction court's decision, reversal is not req

uired ev en thoug

h the tria l court did

not so rule

when the

record is oth erwis e adequa te for review. In the present appea l, the issues which the petitione r argu es that the postconviction court did

not consid

er are matters as to which th

e recor d is suffic ient for t

his court to make determinations. Accordingly , we respectfully disagree that this matter

must be remanded for additional findings and conclusions by the post-conviction court, and now will consider th e remaining issuesraised o n appea l. II. Jury Ins tructio ns The petitioner argues that the trial court erred in its instructions as to second degree murder and criminal responsibility, thus denying h is “right to a fair trial by lowering the State’s burden needed to convict.” The specific complaint as to the instructions for second degre e murder is the use of the phrase, “or either of the m,” as in th

e sentence “[f]or

you to find the

defenda nts, or either of them, guilty of this offe

nse, the State m ust have proven bey ond a reasonable doubt . . . that the defenda nts, or either of them, unlawfully killed the alleged victim; and [] that the defendants, or either of them, acted intentionally [.]”
As to this claim, the post-conviction court concluded that “the jury instruction regarding the jury giving separa te consid eration to each de

fendant fairly directs the jury to conside r each defendant on the fac ts and cir

cumstanc es that a

pply to that pa

rtic ula r defendant,” and that “[t]he verdict obviously indicate s t hat the j ury, in fact, followed the Court's instruction and returned different verdicts as to each defendant.”
The petitioner’s argumen t inc ludes no a uthoritie s agre eing with his inter pretatio n of this language. I

n fact, his parsing of

the instructions ignores several matters. First, the instructions as to first degree murder conc luded w ith the same language which the pe titioner criticizes as to the instruction for second

degree murder, that

if the jury found the de

fendants, “or either of them,” not guilty of first degree murder, or ha d “a reasonable doubt

as to the gu

ilt of either of the

defenda nts as to this offense,” the jury was to “acquit that defendant of this offense” and c onsider “that defendant’s guilt or innocence of s econd degre e murder [.]” Obvious ly, the jury heeded this instruction, for it

convi cted the

petitione r of sec ond deg

ree mur der, alt hough c onvicting

his-7-

codefendant

of first d egree murder. While the petitioner acknowledges that the trial court instructed the jury that it was to “give separate c onsiderat ion as to e ach def endant,” he arg ues that “ [t]his instruction was not only inconsistent with, but nullified by, the court’s repeated use of the phrase ‘or either of them’ throughout the instructions when defining the State’s re quisite burden of proof needed to convict.” We respectfully disagree with this argument, which we believe to be pur e speculation. Juryinstructi ons must be reviewed in the co ntext of the overall charg e rathe

r than in isolation, as the petitioner has done. See Sandstrom v. Montana , 442 U.S. 510, 527, 99 S. Ct. 2450, 2461 (1979); see also State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charg e is prejudicial erro r "if it f

ails to fairly submit the leg al issues or if it misleads the jury as to the applica ble law." State v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997). The instructions of which the petitioner complains do neither.
It is clear from the differing ver dicts that the jury ga

ve separate consideration to the charg es agains teach defendant. Accordingly, we conc lude that the record fully

supports the determination of the tri al court

that this c laim is with out merit.
Ad di ti on al ly, the petiti oner ar gues tha t the instr ucti ons as to criminal responsibility were errone ous. He asse

rts that the phrase , a defe

ndant is c riminally responsible for an offense committed by another if, with in

tent to pro mote or a ssist the of fense, h e “solic its, directs, aids or attempts to aid another person to commit the

offense ,” is inco nsistent w ith and nullifies the instruction that before a jury can f

ind a defendant cri minally responsible it first must determine “that all of the e ssential elementsof said offense [have] be en prov en beyond a reasonable doubt.” According to the petitioner’s analysis, as we underst and it, the result of these instructions was that the State was required to prove only the essential elements of the offense but not that the petitioner acted with the intent to promote or assist the offense. Again, the petitioner has cited no authorities which support this argument. We believe that a commonse

nse rea ding of t his instruc tion simply

is that a de

fendant cannot be

criminally responsi ble for an offense committed by a nother unless the State first has proven beyond a reasona ble d oub t the elem

ents of the offen se. I

f the jury determines that the

defenda nt, actin g to promote or assist in the commission of the offense, or to benefit in its proceeds or results, solicited, directed, aided, or

attempted to aid another to commit the offense, then the defe ndant is c riminally responsi ble for the offense. W e re spectfully d isagree with the

claims tha

t the lang

uage is contradictory

or con fusin g. Accordingly , we concur with thedetermination of the post-conviction court tha t this clai m is without m

erit.
III. Ineffective Assistance of Counsel
In his remaining claim, the petitioner asserts that he was deniedthe effective assistance of counsel on appea

l, becau se counse

l did not raise as issues on appeal: (1) the trial court's erroneous admission of the victi m's dying d eclara tion to hi s mot her and (2) th e tria l cour t's failure to provide2 For th e pur pose s of our rev iew , we are combi ni ng t he c lai m, raised as Ground III in t he pro se post -con vict

ion petiti on, that

the t rial cour t erred in not instru cting as to facilitation a nd, in the seco nd am end ed p etition, that a ppe llate cou nsel wa s ineffective for no t raising this issu e on d irect ap pea l. -8- a jury instruction on the lesser-inc luded offense of facilitation of first degr ee murder. 2 The State asserts that bec ause nei

ther issue would hav e been me

ritorious , counsel was not ineffec tiv e for failing to prese nt them on d

irect ap peal.
The post-con

viction pe

titi oner bea

rs the burden of proving his allegations by clear and convincing evidence. See Tenn. Cod e Ann. § 40 -30-210(f). When a n evident iary hearing is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal u nless the evidence preponderates ag ainst them. See Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involve s purely fa ctual issues, the appellate court should not reweigh or reeval uate the evidence. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the f acts of the case is de novo , with no presumption of correctness. See Ruff v. Sta te , 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performa nce of counsel and possible prejudice to the defense a re mix ed questi ons of law and fac t and, thus , subject to de novo review by the appellate court. See State v. Burns , 6 S.W.3d 453 , 461 (Tenn. 1999).
In or

der to determine the competence of counsel, Tennessee courts have applied standa rds developed

in federal case law. See State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the same standard for determining ineff ectiv e assista

nce of c ounsel tha

t is applie d in federal cases also applies in Tennessee). The United States Supreme Court articulated the standard in Strickland v. Washington , 466 U.S. 66 8, 104 S. Ct. 2 052, 80 L . Ed. 2d 674 (1984), w

hich is widely acc epted as the appropriate standard for all claims of a c onvicted petitioner that counsel’s assistance was defective. Th e s ta nd ar d i s f ir ml y gr ou nd ed in th e b el ie f t ha t c ou ns el pl ays a role that is “critical to the ability of the a dversarial sy stem to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standar d is a two- prong te st: First, the defendant must show th at counsel’s performance was deficie nt. This requires showing that counsel made errors so serious that counsel w as n ot functioning as the “counsel” guar anteed the defendant by the Sixth Ame

ndment. Se cond, the

defenda nt must show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that

counsel’ s error s were so

serious a s to deprive the defendant of a fair trial, a trial whose r esult is reliable.
Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explai ned the mea ning of “deficient pe rfor ma nc e” in th e f

ir st pr on g o f t he te st in th e fol lo wi ng wa y: In any ca se presenting an ineffectivene ss claim, the performance inquir y must be whether couns el’s assi stance w as reas onable-9- considering all the circumstances. . . . No par ticular s e t of detailed rules for counsel’s conduct can satis factorily take account of the variety of circ umstance s faced

by d efense counsel or the ra nge of legitima te decisions regarding how best to repr esent a criminal defenda nt. Id. at 688-89, 104 S. Ct. at 2065. The

petitione r must esta

blish “tha t counsel ’s repr

esentat ion fell below an objective s tandard of re asonableness under prevailing profe ssional norms.” House v. St ate , 44 S. W.3d 508, 5 15 (Te nn. 20 01) (ci ting Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996)). As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessionalerrors, the result of the proceeding would hav e been d iffere nt. A rea sonable p

robabilit y is a probab ili ty suffi cient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 206 8; see also Overton v. State , 874 S.W.2d 6, 11 (Te nn. 1994) (conclu ding tha t petitione

r failed to establi sh that “th

ere is a reasona ble probabil

ity t hat, but f or c ounsel’s errors, the outcome of the proceeding s would have been different”).
Courts need not approach the Stricklandtest in a sp ecific o rder or even “a ddress both componen

ts of the inquiry

if the defendant makes an insufficient showing on one .” 466 U.S. at 697, 104 S. Ct. at 206 9; see also Goad , 938 S.W.2d at 370 (stating that “failure to prove either def iciency or prejudice provides a sufficient basis to deny relief on the ineffective assistance cla im”). By statute in Tenne ssee, the petitioner at a post-conviction relief hearing ha s the burden of proving the allegations of fact by clear an d convincing evidence. See Tenn. Code Ann. § 40-30- 210(f) (1997). W e note that when post-conviction proceedings have included a full evidentiary hearing, as was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and weight of a jury verdict, and

this court is “bound by the trial judge’s findings of fact unless we conclude that the evidence c on tained in the record preponderates ag ainst the judgment entered in the cause.” Black v . State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990) . The reviewing court mu st indulge a strong presumption that the conduct of counsel fa lls within the range o f reasona ble professional assistance, see Strickland , 466 U.S. at 690, 104 S. Ct. at 2066, and may not second- guess the tactical and strat egic choices made by trial counsel unless those choices were uninformedbecause of inadequate prepar ation. See Hellard

v. State , 629 S.W.2d 4, 9 (Tenn. 1982). The fact tha

t a strate gy

or tactic failed o r hurt the defense does n ot alone s upport the claim of ineffective assistance of counsel. See Thompson v . State , 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997)

. Finally, a pe

rson charged with a

criminal offense is not entitled to perfect represe ntation. See Denton v. State , 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns , 6 S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under the facts of anothe r.”-10- A. Dying Declaration
As to t he vic tim's “dying declaration,” counsel, who represented the petitioner both at trial and on appeal, testified that he had practiced law f or over thirty y ears and had tried "severa

l hundred" murder cases at the time of the petitioner's trial. He said that although he could not recall whohad actually entered the objection, either he or counsel for the codefendant had objected at trial when the Statetried to introduce through witness Francis Hampton, the victim' s mother, a statement made by the victim shor

tly b efore h

is death. He rec alled tha

t Ms. Hampton testified that when she asked the victim what had happened in the apartment, the victim replied, "I didn't owe them any

money." Counsel believedthat the tr ial cour t had cor rectly ruled that the statement was admissible under the dying declaratione xception to the hearsay rule and that, in context, the testimony was not particularly

damaging to the

petitione r. Counsel explained

that the victim's s tatement didnotin any way identify the petitioner, and no e vidence was offe

red at tr ial that the victim

owed the petitioner mo ne y. He recalled that the codefenda nttestified at trial that the victim owed him money. Counsel stated that

he chose not to raise theissue on direct appeal because he " tried to only raise issues that [he] thought had some degree of being suc cessful. . . . [and he] felt that it was not a valid issue."
We have reviewed the tri al transcrip t and note that coun sel for b oth the pe titioner a nd his codefendant

objected to the statement of the victim to his mother, “Momma, I didn’t owe them any money. I didn’t owe them any money ,” arguingthat it was not a dying declaration. However, the trial court ruled that this statement was admissible as a dying declaration. Trial counsel for Robert Johnson, the codefendant , raised the issue on direc t appeal , but this court agreed with the trial court’s determin ation tha

t the state ment was a

dying dec laration : Given the facts, [the victim’s] belief that his death was imminent can be readily infe

rred. Sinc e the ev idenc e supp orts t he tri al cou rt's conclusion t ha t the victim was aware of his impending death at the time he made the statement to his mother, we cannot say that the evidence prepond

erates agains t the trial court's conclusion that [the v ictim’s] statemen

t was a dy ing dec laration . Hence , it was ad miss ibl e under the he arsay exc eptio n for d ying d ec laration, Tenn. R. Evid. 804(b)(2), and the trial

court did not err. Defendant is not e ntitled to relief on this issue.
S tatev. Robert Earl Johnson , No. M2000-01647-CCA-R3-CD, 2001 WL 1180524, at *12 (Tenn

. Crim. App. Oct. 8, 2001), perm. to appeal denied (Tenn. Apr. 1, 2002).
As to this cla

im, the post-conviction court determined that trial counsel properly

exercised his discretion in dec iding that the “dy ing dec laration ” claim w ould have been uns uccessf

ul on appe al, and th at h e should raise only those issues which he believed might be successful. We agree and conclude that the petitioner failed to establish that he was prejudiced by the fact trial cou nsel did not raise on direct a ppeal a c laim whic h was with out merit.-11- B. Jury Instruction as to Facilitation
As to th e peti tion er's second a llegat ion, coun sel testif

ied that w hile he c ould

not speci fically recall requesting an instruction o n fa cilitation , it was hisstandar d practi ce to mak

e such a r equest when the crime involved more than one participant and wher e his client was charged under a criminal responsi

bility theory . Counsel, who relied on an ali bi defen se at trial, stated tha t he did not raise as an issu e on dire ct appea l the fac t that the t rial cou rt had not

instructed the jury

as to f aci litation because "in looking back on the fa cts of this case . . . it would have almost been . . . frivolous." He did, ho wever, acknowl edge th at he “c ould have ove rlooked it as a matt

er of ove rsight. But . . . I didn't leave the [c]ourtroom thinking that ther e had been an error made by [the trial cou

rt] chargingor refusing to charge facilitation.” It was his opinion that the p etition er “wa s extremel y fortunate in receiving second deg ree murder rather than first deg ree murder.”
The post-conviction court denied relief as t o this claim in a general manner, finding tha t counsel was not ine

ffectiv e but was “a very experienced and

compete nt trial a ttorney whose representationof [the pet ition er] was well within the range of competence demanded of criminal defense attorneys.” F

urther, the post-conviction court accredited the testimony tha t the p etitioner “was very fortunate to not be convicted of first degree murder under the facts of this case.”
The trial and appeal of this matter straddled the decision of our supreme court in State v. Burns , 6 S.W.3d 453 (Tenn. 19 99), the tri al occurring in 1999 before the re lease of Burns and appella te counsel filing the petitioner’s brief on direct appe al after its release. The court

explained in Burns “that f

a cilitation [is] a lesser-included offense of criminal responsibility f or first-degree murder.” I d. at 470. W hile the jury at the petitioner’ s trial was instructed as to criminal responsibility, it was not instructed as to facilitation.
Our supreme court explained in State v. Moore , 7 7 S.W.3d 1 32, 134 (Tenn. 2002), the responsi bility of the trial cou

rt to instr uct as to le sser-inc luded off enses and the proc ess to utilize in de te rm in in g w hi ch su ch of fe ns es mu st be in th e c ha rg e t o t he ju ry: [I]t is the duty of the trial

judge to instruct the jury as to the law of a lesser-included

offense if he or s he d etermine s that: (1) reasona ble minds could ac cept the

offense as less er-included; and (2) the evidence is legally suff ici ent to support a conviction for the lesser-included

offense. State v. Burns , 6 S.W.3d 453, 469 (Tenn. 1999). Th e j udge shall instruct the jury on all lesser-included offenses notwithstanding a request from the defenda nt. Tenn. Code Ann. § 40-18-110(b) (1997 Repl.).
Id. (footnote omitted).
The question o f whethe

r a give n offens e should be

submitted t

o the jury as a lesser-included offense is a mixed que stion of la

w and fa ct. State v. Ru sh , 50 S.W.3d 424, 427 (Tenn. 2001) (citing-12-

Statev. Smiley , 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed questions of law and fac t is de novo with no presumption of correctness. Id. ; see also Burns , 6 S.W.3d at 461.
Tennessee Code Annotated section 39-11-403(a) provides, in relev ant part, as to criminal re sp on si bi li ty f or fa ci li ta ti on of a f el on y: A person iscriminally responsible for the facilitation of a felony if , k no wi ng th at an ot he r i nt en ds to co mm it a s pe ci fi c f el on y, butwithout the intent required for criminal responsibility under § 39- 11-402(2 ), t he perso n knowing ly f urnishessubstantia

l assistance in th e c om mi ss io n o f t he fe lo ny. Our supreme court explained, in State v. Allen , 69 S.W.3d 181 ( Tenn. 200 2), that r eversib le e rror occurr ed from th

e jury ’s not hav

ing bee n instruc ted as to f

acilitat ion beca use , based o n th e evidence, the jury

reasonably

could have determined that the defendant was g uilty of this offense:
The proof in

this case showed that Allen stood silently in the door way of the market as his accomplice robbed the clerk at gunpoint. Allen displayed no weapon and took no property from the victi m. There was no evidence that he received any proceed s of the ro bbery. The jury could have reasonably

co ncl uded that Allen did not share the intento f his accomplice even though he knowing ly furnished substantial assistance by

blocking the door. Furthermore, consistent withthe general rule, the proof of a ggravated robbe

ry in th is case necessa rily proved robbery

. There fore, evidence existed that reasona ble minds could acc ept as t o the offense of facilitation of robbery.
Id. at 188 (footnote omitted). Likewise, in State v. Richmond , 90 S.W.3d 648 (Tenn. 200 2), the court explained that overwhelming proof as to the gre ater offense does not obviate the necessity to instruct as to lesser offense s: [O]verwhelming evidence established defend an t Ric hmon d's

participation in the robbery of Mose Cuxart and attempted robbery of Char l es Stephen Earls. Likewise, evidenc e was overwhelming and uncontroverted

that d eadly we apons were involved. In pr oving the greater offenses, the State necessarily pr ov ed the lesser-included offense s. Th er efor e, a j ur y could have convicted the defendant of the lesser-included

offenses of robbery

and attempted robbery . As such, i twas error for the trial court not to charg e the lesser-included of fe ns es of ro bb er y an d a tt em pt ed ro bb er y.-13-

Id. at 662-63. However, the court additionally explained that the fa ct that lesser

offenses should have been charged, but were not, does not nec essarily require a reversal of the conviction:

[O]ur determination whet he r this error was harmless bey ond a reason able

do ub t h in ge s u po n w ha t a re as on ab le ju ry would ha v e done in light of the evidence produced at trial. We ho ld that n o reasona ble jury would have c onvicted the defe n dant on the lesser-included

offenses of robbery

and attempted robbery

instead of the charged offenses due to the unc ontroverted and overwhelming evidence establishing the use of deadl y weapons a nd his direct participation in the offenses. An y error was harmless bey ond a reasona ble doubt.
Id. at 663.
To assess the petitioner’s claim in the present appeal t hat his conviction should be reversed because the cour t did not inst

ruct as to facilitation and appellate counsel did not raise this as an issue on appeal, we will review the evidence. Christopher

Michael Darnell , the vict

im’s next-door neig

hbor at the apart

m e nt co mplex, testified that on October 24, 1997, th e day of the crime, he heard a knock on the door, looked outside, and saw two men first standing in front of the victim’s apartment and then going inside. He continued, “And after that, all chaos broke loose. There was yelling

and all types of commotion and fightin g.” Da

rnell de scribed

what hap pened ne xt:
A lot of fighting, stuff breaking, a lotof thro wing around, yelling. [The victim] was almost thrown –thrown thr ough my wall, numerous times. All

through this, I just

keep he aring, “Where’ s my money? I wa

nt my money .”
Darnell said that

the demands for money

were “[f]rom

the other individuals,” not from the victim. He estimated that the commotion lasted for “approximately a n hour.” When he and his wife heard someone say, “ I’m going to shoot you,” they

got into a corner

behind som

e furnitur e. He sa id that “after all the fighting and s tuff got done,” the two men stay ed in the victim’s apartment for fifteen to twenty minutes. Heather Darnell testified that she heard t he men “asking

where th eir money was, and tha

t if he didn’t give them their money , they were going to shoot him.”
Vickie Miller, another of the victim’s neighbors, said that, on the evening of the crime, she had been in her apartment with her sister and g randchild. Abo ut 9: 30 p.m., she saw two AfricanAmericanmen in the

ya rd in fro nt o f her apartment. The men then went up the stairs to two apartme nts, one of which was the victim’s. Her mother, who lived in the apartment just below that-14-

of the victim, called and asked h er to come. While at her mother’s apartment, Miller “heard [the victim] scream

ing for his life,” say ing, “O h, God, he

lp me. They’r

e killing me. Oh, God, help me.” She arrived at her mother’s apartment at 9:55 p.m. and “kept

calling and calling and calling ” 9-1-1, butwas told “they didn’t have enough officers” to respond. At 10:15 p.m., she ca lled the victim’s mother at her job and “told her she needed to come home, because someone wa s killing [t h e victim].” It took the victim’s mother about ten minutes to arrive. T he apartment manager beg an beating on the door of the victim’s apartment, and the same two men left the apartment. Miller described what she saw as she entere d the apartment with the victim’s mother:

The living room was all tore up, things turn ed ove r, just tore down, just demolished. Blood was every where. I know that. And we went into the – which would be the bedroom, but he had made that the living room. And [the victim] was laying [sic] on the floor, a gainst the wall. And he – the only thing he told me wa s cover me up before I go into a coma.
Franc is Hampton, the victim’s mother, te stified th at after the two me

n had lef t, she we nt to the victim’s apartment, entered through the unlocked f ront door, and found him on the floor in the back bedroom “in like a fetal position.” The victim was very bloody and spoke to her, “ Momma, I didn’t owe them any

money. I didn’t owe them any money .”
Officer George Bouton, of the Metro Police De

partmen t, said that he had been called to the victim’s apartment to take photographs the evening of Octob er 24, 19 97, arri ving at a pproximate

ly 11:15 p.m. He de scribed

the apar tment as be

ing “in d isarray . It a

ppeare d that the

re had been some type of struggle that had

occurred there.” He said “there was blood from the front door, pretty much throughout the apartment.” We have reviewed the photographs of the apartment, which were trial exhibits, and they show

smashed f

urniture , broken

glass, b lood smea

red on the walls, and blood on the carpet and sofa.
Dr. John E. Gerb er, a for ensic pa thologis t, testified as to the autopsy results of the victim

. He said the victim had died as the result of what were estimated to be for ty-one stab wounds to the hea d, tor so, arms, and legs. Of these, the wounds to the rig ht lateral chest, the mid-portion of the back, and the left lateral

back would have been fatal. The victim had incision wounds in addition to the forty-one sta

b wounds. Dr. Gerber said, “I t’s very likely

more than one weapon was used.” By the petitioner’s view of

the evidence, a facilitation instruction was required because “the evidence adduce d by

the State would sug gest onl

y th at [the peti tioner] either drove, or loaned the vehicle to, [the petitioner’s] brother.” Additionally, he a sserts tha t “[t]he State’s sole argument agains t[the petitioner] was that [he] was there.” We respectfully disagree with the petitioner’s view of the evidence presented at trial. I n brief, the S tate’s pr

oof was th at the pe

titioner a nd his3 As we have stated, t he petiti oner asserted an a libi defense at trial, denyin g that he had b een a t the victim ’s apartment at the t

ime of the att ack. -15- codefendant

both entered and left the victim’s apartment together. 3 Du ri ng th e a pp ro xi ma te ly t hi rt yminute period that they we

re inside, the victim w as stabbe d at leas t forty -one time s, very likely with two weapons, and sustained additional uncounted incision wounds. Three of the stab wounds were fatal. The victim was thrown against the walls of his apartment and was shouting , “ They’re killing me.” Witnesses heard the attackers asking “whe re their money was” a

n d telling the victim

“ they were going

to shoot him. ” Given th e lengt h of time and the savagery

of the attack throughout the victim’s apartment and the shouts of the victim and his assailants showing that the victim was being attacked by more than one pe

rson, we conclude that, based upon the proof presented at trial, a reasonable jury

would nothave determined that the petitioner was guilty merely of f

acilitation. In fact, the ev idenc e was ov erwhel ming t hat th e peti tion er acti vely part icipa ted in the le ngt hy a nd brutal attack on the victim. Accordingly , even if the trial court should have instructe d as to facilitation, as the petitione

r contends, the er

ror was h armless a

nd, as such, does no t entitle him to post-conviction relief. Likewise, as to the variant of this claim, that appellate counsel was ineffective for not ra ising on appeal that the jury

should have been instructed on facilitation, the r ecord supports the determination of the post-conviction court that the petitioner failed to prove that he was prejudiced as a result. Thus, as to his claims that both the trial court an d counsel erred as to a facilitation instruction not being

given, we conc lude that

the petiti oner hasfailed to show that h

e is entitl ed to post-conviction relief.
CONCLUSION
Based upon the foregoing authorities and re asoning, we affirm the post-conviction court’s dismissal of the petition.

________________________________________ ALAN E. GL

ENN, JUDGE