         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs April 22, 2003

              DENNIS RAY GILLILAND v. STATE OF TENNESSEE


                       Appeal from the Circuit Court for Dickson County
                           No. CR-5279     Robert E. Burch, Judge



                   No. M2002-01865-CCA-R3-PC - Filed November 14, 2003


The petitioner, Dennis Gilliland, appeals the Dickson County Circuit Court’s denial of his petition
for post-conviction relief from his 1996 felony murder conviction. He contends that the trial court
erred in failing to instruct the jury on the issue of alibi. He also raises ineffective assistance of
counsel because his attorney did not request an alibi instruction, requested the dismissal of the
premeditated murder count instead of the felony murder count after the jury returned guilty verdicts
on both counts, and did not raise relevant arguments about the jury seeing the petitioner in handcuffs.
Last, the petitioner claims that he was denied the right to a fair trial by an impartial jury because the
jury was allowed to hear evidence that he had been involved in two other, recent shooting deaths.
We affirm the denial of the post-conviction petition.

                Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY and
NORMA MCGEE OGLE , JJ., joined.

Jerred A. Creasy, Charlotte, Tennessee, for the Appellant, Dennis Ray Gilliland.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Dan
Mitchum Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                 In 1996, a Dickson County jury found the petitioner guilty of premeditated murder and
felony murder in connection with the shooting death of Bobby Bush. The trial court vacated the
premeditated murder conviction based upon insufficient evidence and entered a judgment of conviction
for felony murder with a sentence of life without the possibility of parole. On direct appeal, this court
affirmed the felony murder conviction but remanded for resentencing. See State v. Dennis R. Gilliland,
No. 01C01-9707-CC-00256 (Tenn. Crim. App., Nashville, Nov. 19, 1998). The Tennessee
Supreme Court upheld the conviction but, instead of remanding for resentencing, modified the
petitioner’s sentence to life imprisonment. State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000).

                In October 2000, the petitioner timely filed for post-conviction relief. Counsel was
appointed, and an amended petition was filed on December 17, 2001. The post-conviction court
conducted an evidentiary hearing on January 15, 2002; the petitioner’s former counsel was the only
witness who testified. The post-conviction court took the matter under advisement and issued a
written opinion denying relief and dismissing the petition. Aggrieved by the lower court’s
disposition, the petitioner has appealed.

               The evidence adduced at the petitioner’s murder trial appears in this court’s earlier
opinion,1 from which we quote:

                         On July 19, 1995, the defendant asked his mother for gas
                  money. She first offered $10, but the defendant replied he needed
                  more so she gave him $20. The defendant arrived at a local bar called
                  “Daisy Dukes” at approximately 9:30 p.m. that evening. There he
                  joined Ronnie Murphy.

                           After spending approximately three (3) hours in the bar, the
                  defendant and Murphy left. Murphy testified that the defendant
                  encountered Eddie Christy in the parking lot of the bar. The
                  defendant told Christy about a shooting several weeks earlier wherein
                  the defendant fired .20 gauge shotgun slugs at two (2) brothers named
                  Walton. Both brothers were killed. The grand jury declined to indict
                  the defendant, concluding the homicides were justifiable. Murphy
                  testified that the defendant produced a .20 gauge single-shot shotgun
                  from his truck to show Christy. Murphy observed a box of slug
                  ammunition on the front seat of the defendant's truck at that time.

                        The defendant followed Murphy to Murphy's house where
                  Murphy left his truck. They proceeded in the defendant's truck to a
                  convenience store to buy beer, arriving sometime after midnight....

                          The defendant and Ronnie Murphy drove to Donnie Murphy's
                  house. Donnie Murphy was not at home. Ronnie Murphy and the
                  defendant went to the basement to play pool and drink beer. Shortly
                  thereafter, Donnie Murphy and the victim, Bobby Bush, arrived at the
                  house.



1
 At the conclusion of the post-conviction evidentiary hearing, the original trial transcripts were offered and designated
Exhibit N o. 1 to the pro ceedings. T he record before us, however, do es not include these transc ripts.

                                                          -2-
        . . . The victim began discussing the prior shootings with the
defendant. Donnie Murphy testified that the victim did not believe
the defendant's statement that he shot the Walton brothers with .20
gauge shotgun slugs from a distance of seventy-five (75) yards. . . .

        The victim then pulled from his pocket at least two (2) $100
bills and several other bills, stating that he would bet all of the money
that he too would have shot the brothers if faced with the same
situation. The defendant looked at the victim’s money and stated that
he was not impressed. The victim responded that he was not
attempting to impress the defendant.

         Around 3:20 a.m., the victim said he was going to drive home.
. . . The defendant left shortly after the victim, stating he would drive
by the victim’s house to make sure that he arrived safely. He took a
cooler containing the group’s remaining beer.

        ....

        Vera Bush, the victim’s mother, testified that she awoke
briefly at 3:00 a.m. that morning and noticed her son was not at home.
She woke again at 4:45 and noticed her son’s wrecked truck parked
in an unusual place. . . . The victim was neither in the truck nor the
house.

        The defendant ran out of gas that morning around 5:30. He
approached Oda Lovins’ house and asked him for a ride to a gas
station. The defendant pumped $5 worth of gas in a can and offered
to tip Lovins $10 for his effort. Lovins observed a “fairly good wad
of bills” in the defendant’s billfold. . . .

        The defendant then drove to the farm of Bill Freeman. . . . The
defendant began talking about the Walton homicides. Later that day
Freeman discovered a cooler of beer on his truck, and a farmhand
related that he saw a truck similar to the defendant’s driving away
from the farm.

        From the Freeman farm, the defendant proceeded to Green’s
Market where he purchased a case of beer with $20 cash. He then
drove to Clarksville where he ate breakfast at a pancake restaurant
and rented a room at the Quality Inn. The defendant paid $44 in cash
for the room, rented a movie for $7, and tipped the maid $5 for
delivering the movie to the room.


                                  -3-
         A mail carrier discovered the victim’s body lying along a road
in rural Houston County around 10:30 that morning. The victim, who
had a large sum of currency the previous evening, had only change in
his pocket when found.

         The defendant’s whereabouts for the rest of the day are
disputed. The defendant claimed to have visited a riverfront park
after leaving the pancake restaurant, then to have traveled back to the
“old Lock B bottoms” where he remained until that evening when he
presented himself at the Dickson County Sheriff’s office. The state
presented evidence of the defendant’s stay at the Quality Inn in
Clarksville.

       Lieutenant Randy Starkey with the Dickson County Sheriff’s
Office testified that he was at the Sheriff’s Station No. 2 on the
evening of July 20, 1995, when the defendant arrived at the station
and engaged him in conversation. Starkey stated that the defendant
had been to the station several times as a result of the investigation of
the Walton homicides. Thus, when the defendant mentioned drinking
beer with the victim at the Murphy residence the previous night,
Starkey became interested. He asked the defendant what the
defendant knew about the victim. The defendant asked if the victim
had gotten into some trouble. Starkey then related the story of the
victim being found murdered that morning.

        ....

        The defendant related his version of the previous evening’s
events to the officers. The defendant neglected to tell the officers
about running out of gas, buying beer and renting a motel room that
morning. The defendant told the officers he spent the night watching
three (3) barges at the river bottoms. The defendant related that he
had only $5 in his possession at that time. The fact that the defendant
was carrying a shotgun was discovered in normal conversation.
Agent Watkins went to the defendant’s truck and seized a breeched,
unloaded .20 gauge shotgun. Watkins also noticed that the interior of
the truck appeared to have been washed recently. Water was pooled
in the floorboard, and the truck appeared cleaner than would be
expected after driving on gravel roads. The bed was noticeably dirtier
than the rest of the truck.




                                  -4-
                       During initial questioning of the defendant, Agent Watkins
               received a telephone call that he should investigate the Liberty
               Church Cemetery as a source of possible leads in the victim’s death.
               The defendant was asked to remain voluntarily at the station while
               officers investigated the cemetery[, and he] walked freely in and out
               of the station[.] . . .

                       Earlier in the day, Liberty Church Cemetery was reported to
               authorities as a site of vandalism. The cemetery is located in Dickson
               County, a short distance from the victim’s residence. Closer
               inspection revealed a vehicle had driven into the cemetery and
               knocked over four or five headstones. It was later determined that the
               victim’s truck had knocked the stones over, coming to rest on one of
               them. A wider set of tracks was also detected at the scene. It was
               theorized by the state that a larger vehicle pulled the smaller vehicle
               out of the cemetery. Subsequently, TBI agents were able to show
               paint on the bumper of the defendant’s truck consistent with paint
               from the victim’s truck.

                      When the officers returned to the station, the defendant was
               read his rights and his truck was formally seized. The defendant
               maintained his version of events as previously related to the officers.
               During questioning, the defendant stated that he had never been
               inside the victim’s truck, nor had the victim been in his. The
               defendant was arrested for the victim’s murder.

                       The next day two sets of currency were found on the grounds
               of Sheriff’s Station No. 2. The first, $35, was folded and wet and
               found near a downspout. The second set, $120, was found shortly
               thereafter and was dry.

                        At trial, the state presented forensic evidence that the victim
               died as a result of a .20 gauge shotgun slug being fired into his head
               from a distance of less than thirty-six (36) inches. TBI agents
               testified as experts about blood traces removed from the defendant’s
               truck. A forensic scientist, established as an expert in DNA testing,
               found the blood to be consistent with the victim’s blood. The
               probability of randomly selecting another Caucasian, unrelated to the
               victim and having the same DNA profile as the blood found in the
               defendant’s truck, was one in 286,000.

Dennis R. Gilliland, slip op. at 2-8 (footnote omitted).



                                                 -5-
               On direct appeal, the petitioner raised nine issues, including the erroneous admission
of testimony about the petitioner’s involvement in the Walton homicides and the harmful prejudice
from appearing before the jury on three occasions while handcuffed. Id., slip op. at 2.

                In connection with his bid for post-conviction relief, the petitioner alleged numerous
grounds. We need not address each claim, as the petitioner has confined his appeal to (1) the trial
court’s failure to give an alibi instruction; (2) his counsel’s ineffectivensss in failing to request an
alibi instruction, in securing the dismissal of the wrong murder charge, and in failing to make
relevant arguments about the petitioner’s appearance in handcuffs; and (3) the denial of a fair trial
based on the admission of evidence of his involvement in the Walton homicides.

                                     Post-Conviction Hearing

               At the post-conviction hearing, the petitioner’s former counsel testified at length
about his representation. Much of counsel’s testimony is not directly relevant to the issues before
us. In addition counsel’s memory oftentimes was sketchy owing, undoubtedly, to the passage of
time.

                Counsel testified and explained that the Bush homicide charges were originally
returned against the petitioner in Houston County. Following a preliminary hearing, counsel was
asked to accept an appointment to undertake the petitioner’s defense because conflicts of interest had
disqualified other local attorneys. After counsel had been in the case for approximately seven
months, the charges in Houston County were dismissed, and the petitioner was reindicted in Dickson
County.

                Counsel testified that a considerable amount of pretrial investigation was performed
on the petitioner’s behalf. In addition to counsel’s efforts, an investigator and another assistant
worked on the case and met and discussed issues with the petitioner. Counsel met with the
petitioner’s family members and obtained useful leads and information from them. He interviewed
all known witnesses, except one person who refused an interview. He visited the crime scene and
traveled to Nashville to interview Dr. Charles Harlan about his autopsy and to discuss the cause of
death.

                Counsel said that the theory of defense was that the petitioner was not Bush’s
assailant. In developing that defense, counsel testified that he moved to exclude any testimony about
the petitioner’s involvement in the Walton shootings. The trial court denied the motion, but the
supreme court later agreed with defense counsel that it was error to admit the evidence. The error,
however, was ruled harmless.

                Counsel testified that various strategies were used to deal with the circumstantial
elements of the state’s case. Counsel uncovered photographic evidence that allowed the defense to
argue that the crime scene at Liberty Church Cemetery had been badly contaminated. Counsel was
aware that the state intended to offer expert DNA testimony about blood traces found in the


                                                  -6-
petitioner’s truck that was consistent with the victim’s blood. From counsel’s investigation, the
presence of the blood could be accounted for based on the victim’s presence in the petitioner’s truck
on an earlier occasion and/or transference while the investigating officers were collecting evidence.
Regarding the money found at the police station, counsel moved unsuccessfully to exclude that
evidence as speculative and prejudical. Counsel maintained that it was never clear from the evidence
introduced how much money the petitioner actually had.

               Counsel testified that one of the important issues in the case was the petitioner’s
whereabouts before and after the homicide. The petitioner had given a statement to law enforcement
officials about going to Lock B to look for a woman, after which he stayed at the lock bottoms
drinking and watching the barge traffic and later went to Clarksville. The state had a witness, the
lock and dam operator on duty, who was prepared to testify that there was no barge traffic during the
time period that the petitioner claimed to have seen barges. Counsel testified that his investigator
uncovered information that river traffic was only logged in and out when the barges were close to
the lock or dam and that the petitioner was eight miles from that site.

                 Counsel was asked and acknowledged that on three different occasions jurors saw the
petitioner in handcuffs as he was being transported to the courtroom. The first two times, counsel
testified that he complained to the trial judge in chambers and was assured that the problem would
be resolved. When the petitioner was seen the third time in handcuffs, counsel stated that he
objected on the record and later argued undue prejudice. Counsel admitted that he did not move for
a mistrial.

               Regarding the jury verdicts, counsel’s memory was inadequate to relate any specifics
of what took place. He recalled that the jury returned guilty verdicts on both the premeditated and
felony murder counts. However, counsel testified that he was uncertain whether he moved to
dismiss the premeditated murder verdict or whether the trial court sua sponte dismissed that charge
because the state had failed to prove premeditation.

                                           Alibi Instruction

               In his first issue, the petitioner complains that he is entitled to post-conviction relief
because the evidence at trial raised the issue of alibi, but the trial court did not give the jury an alibi
defense instruction. The post-conviction court rejected the claim as having been waived. We agree.

               It is well established that a party may not raise an issue in a post-conviction petition
that could have been raised on direct appeal. State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App.
2000), overruled on other grounds by State v. Reginald D. Terry, ___ S.W.3d ___, No. W2001-
03027-SC-R11-CD (Tenn., Jackson, Oct. 30, 2003). “A ground for relief is waived if the petitioner
personally or through an attorney failed to present it for determination in any proceeding before a
court of competent jurisdiction in which the ground could have been presented.” Tenn. Code Ann.
§ 40-30-106(g) (2003). “The opportunity to raise the issue during a direct appeal of the conviction,
coupled with a failure to pursue that appeal or a failure to raise the issue during that appeal,


                                                   -7-
constitutes a waiver of the issue for purposes of a post-conviction relief proceeding.” Townes, 56
S.W.3d at 35. Consequently, the petitioner’s failure to raise the alibi instruction issue on direct
appeal results in waiver and precludes any review on the merits by this court.

                                Ineffective Assistance of Counsel

               To obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Id. § 40-30-110(f) (2003). A post-
conviction court's factual findings are subject to a de novo review by this court; however, we must
afford these factual findings a presumption of correctness, which is overcome only when a
preponderance of the evidence is contrary to the post-conviction court's factual findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court's conclusions of law are subject
to a purely de novo review by this court, with no presumption of correctness. Id. at 457. The
Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed
question of law and fact and, as such, is subject to de novo review. State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999).

                The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.
Id.; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the
right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. In reviewing a claim of ineffective
assistance of counsel, this court must determine whether the advice given or services rendered by
the attorney are within the range of competence demanded of attorneys in criminal cases. Baxter,
523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner must
show that “counsel’s representation fell below an objective standard of reasonableness,” Strickland
v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984), and that this performance
prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687, 104 S. Ct. at
2064; Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the requirement of prejudice,
a petitioner must show a reasonable probability that, but for counsel’s unreasonable error, the fact
finder would have had reasonable doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695,
104 S. Ct. at 2069-70. This reasonable probability must be “sufficient to undermine confidence in
the outcome.” Id. at 694, 104 S. Ct. at 2068; see also Harris v. State, 875 S.W.2d 662, 665 (Tenn.
1994).

                 When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable
conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065;
Cooper, 849 S.W.2d at 746; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the
reviewing court must be highly deferential and “should indulge a strong presumption that counsel’s


                                                 -8-
conduct falls within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Counsel should not be deemed to have been ineffective merely because a different procedure or
strategy might have produced a different result. See Williams v. State, 599 S.W.2d 276, 279-80
(Tenn. Crim. App. 1980).

               The petitioner first insists that former counsel’s services were deficient and
prejudicial because he did not submit a requested jury instruction on alibi. The petitioner’s
argument, however, merely rehashes his primary complaint that an instruction was not given and
does not address counsel’s alleged ineffectiveness. The petitioner has wholly failed to sustain his
post-conviction burden with respect to this complaint.

               From counsel’s testimony at the post-conviction hearing, it is abundantly clear that
counsel invested considerable time in his factual and legal investigation of the case. Counsel’s
testimony stands uncontradicted that he went to the crime scene, interviewed all available witnesses,
traveled to Nashville to discuss the homicide with the medical examiner, uncovered independent
evidence of crime scene contamination, filed appropriate motions to exclude evidence of the prior
shootings and the recovery of money at the police station, developed a strategy to account for the
anticipated DNA evidence, and communicated frequently with his client and the client’s family.
This court will not second-guess counsel’s trial strategy, resting as it does on an objectively
reasonable investigation. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997) (in addressing
attorney performance, courts are not to “second guess” tactical and strategic choices or to measure
attorney’s representation by “20-20 hindsight”).

               Furthermore, we are not convinced that the trial evidence adequately raised the
question of alibi. In State v. Byron Looper, No. E2001-01550-CCA-R3-CD (Tenn. Crim. App.,
Knoxville, Feb. 3, 2003), perm. app. denied (Tenn., Jul. 7, 2003), the court quoted with approval
from Black’s Law Dictionary defining “alibi” as “[a] defense based on the physical impossibility of
a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the
relevant time.” Id., slip op. at 38 (quoting Black’s Law Dictionary 72 (7th ed. 1999)). The court
further explained,

               “[A] defendant in close enough physical proximity to have committed
               the crime may deny the criminal activity and may affirmatively assert
               that he was elsewhere at the critical time. However, if the asserted
               alternate location is such that, based on the version of events
               contended for by the defense, it would remain within the realm of
               physical possibility for the defendant to have committed the crime,
               then the defense is nothing more than a denial and would not rise to
               the level of alibi.”

Id., slip op. at 39 (quoting Owens v. State, 809 So. 2d 744, 746-47 (Miss. Ct. App. 2002)).




                                                -9-
                Measured by the foregoing standard, we do not believe that the defense of alibi was
fairly raised by the evidence at the petitioner’s trial.

                Next, the petitioner argues in conclusory fashion that trial counsel was ineffective in
requesting or allowing the trial court to dismiss the jury’s guilty verdict on the premeditated murder
charge and, instead, to enter a judgment on the felony murder conviction.

                 The law is settled that premeditated murder and felony murder are not separate
offenses, but different theories of guilt for the crime of first degree murder. There is no bar to
verdicts, as in this case, being returned on both counts. The verdicts stand as “legitimate finding[s]
of fact which the trial court should preserve by merging . . . into one judgment of conviction.” State
v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997). In this case, it does not appear that the
jury verdicts were merged into one judgment of conviction for first degree murder. Rather, it appears
that after the verdicts were returned, the trial court examined the legal sufficiency of the evidence,
found evidence of premeditation to be lacking, and vacated the jury’s verdict on that theory of first
degree murder. See Dennis R. Gilliland, No. 01C01-9707-CC-00256, slip op. at 2 n.1.

               We fail to see how counsel can be held constitutionally ineffective as the petitioner
claims. The petitioner was not entitled to pick or choose which count or verdict to dismiss. That
decision was driven by the legal sufficiency of the evidence, not the petitioner’s preference or trial
counsel’s effectiveness. Moreover, even had the trial court set aside or vacated the felony murder
conviction, the state would have been afforded the opportunity to appeal that ruling. See Tenn. R.
Crim. App. 29(c) (“The state shall have the right of appeal where the court sets aside a verdict of
guilty and enters a judgment of acquittal.”). Inasmuch as the legal sufficiency of the evidence
supporting the felony murder conviction previously was challenged unsuccessfully on direct appeal,
no possible showing of prejudice can be made in the context of ineffective assistance of counsel.

                The petitioner’s final ineffectiveness complaint is equally vague and conclusory. He
argues that counsel “failed to point out relevant arguments regarding the Defendant being seen in
handcuffs” and that the jury’s verdict shows that it “did not listen to or follow the instructions of the
trial court.” The petitioner raised the issue on direct appeal that he was unfairly prejudiced when he
appeared before the jury in handcuffs. This court rejected the issue on the basis that the trial court
had given curative instructions to the jury to disregard any glimpses of the petitioner in restraints.
See Dennis R. Gilliland, slip op. at 11-12.

                 To the extent that the petitioner is attempting to relitigate the issue anew, he cannot
prevail as the issue has been previously determined. A claim under the Post-Conviction Procedure
Act is procedurally defaulted if it has been “previously determined,” meaning that “a court of
competent jurisdiction has ruled on the merits after a full and fair hearing.” Tenn. Code Ann. § 40-
30-106(h) (2003). Nor does the issue fare any better as an ineffective assistance of counsel claim.
Even if we assume that there was some action that counsel did not pursue but should have taken, the
petitioner simply has not demonstrated the requisite prejudice required to successfully challenge
counsel’s effectiveness.


                                                  -10-
                                             Due Process

               The last issue that the petitioner raises on appeal need not detain us long. The
petitioner renews his argument that evidence of his involvement in two fatal shootings a short time
before the Bush homicide was erroneously admitted. The petitioner acknowledges that this issue
was addressed by the Tennessee Supreme Court and found to be harmless error, but he argues the
erroneous admission has not been considered from the due process standpoint of denying him a fair
trial by an impartial jury.

                 A defendant in a criminal case may not “object to the introduction of evidence at his
trial upon one ground, deemed by him to be proper, and then, later in a proceeding for post-
conviction relief, assert that admission of the evidence complained of violated a constitutional right.”
State v. Miller, 668 S.W.2d 281, 285 (Tenn. 1984). The failure to assert the constitutional ground
in the original proceeding constitutes a waiver of any error in the admission of the evidence at issue.
See Ronald C. Mitchell v. State, No. W1999-01097-CCA-R3-PC, slip op. at 6 (Tenn. Crim. App.,
Jackson, April 6, 2000) (court questioned whether petitioner had presented new ground for relief
when he alleged in connection with post-conviction that admission of pager and money at trial
violated due process, after arguing on direct appeal that admission violated Criminal Procedure Rule
16 ); Terry L. Bomar v. State, No. C.C.A. 88-22-III, slip op. at 3 (Tenn. Crim. App., Nashville, Sept.
28, 1988) (as petitioner objected to joinder of offenses under applicable procedural rule, he cannot
now allege that severance should have been granted on constitutional grounds; issue previously
determined).

                For all the foregoing reasons, we affirm the post-conviction court’s rejection of the
petition for post-conviction relief.



                                                        _________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                 -11-
