         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs November 12, 2008

                 ALFONZO WILLIAMS v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                         No. P-27862 Carolyn Wade Blackett, Judge



                      No. W2008-00106-CCA-R3-PC - Filed July 29, 2009



D. KELLY THOMAS, JR., J., dissenting.

       In the present case, the majority concludes that the trial court’s answer to the jury’s question
regarding the self-defense jury instruction fairly instructed the jury and did not mislead them as to
the applicable law, and therefore “the Petitioner has failed to show that he was prejudiced by the
performance of counsel in his lack of objection during the trial and failure to preserve the issue on
appeal.” For the reasons stated below, I must respectfully dissent from this conclusion.

        To review, the first sentence of the trial court’s jury instruction on self-defense read,
“Included in the defendant’s plea of not guilty is his plea of self-defense.” During its deliberations,
the jury submitted the following question to the trial court:

        Question 1, Self Defense — What was the defendant’s plea? The charge says his
        plea included self defense (e.g., Did he say he did it in self-defense?).

Trial counsel requested that the court instruct the jury that the petitioner’s plea was not guilty and
that he did not plead self-defense. The trial court declined to issue an instruction to that effect;
rather, it instructed the jury that “in regard to question number one, in this case, the court had to
charge self-defense as a matter of law in this case. So the court charged self-defense as a matter of
law.”

        In my view, trial counsel should have objected to the trial court’s initial self-defense
instruction. The trial court’s instruction that the petitioner’s not guilty plea included “his plea of
self-defense” conflicted with the defendant’s trial testimony that he did not shoot the victim. This
contradiction was noticed by the jury as evidenced by its question. Furthermore, the trial court’s
response to the jury question—that the trial court had to give the self-defense instruction, including
the “his plea of self-defense” language—affirmed the jury’s concern that at some point the defendant
had testified that he acted in self-defense. Although the majority states that the trial court’s
supplemental instruction “did not say the Petitioner was claiming self-defense,” I find troubling the
fact that the trial court’s supplemental instruction did not tell the jury that the petitioner did not claim
self-defense. The petitioner’s theory of defense was that he was not present at the time the victim
was shot; he testified that he spent time with the victim before he was shot but that the victim was
still alive and unharmed when they parted ways. Furthermore, although two witnesses testified that
the petitioner told them that he shot the victim in self-defense, none of the testifying witnesses saw
anyone shoot the victim. In short, the evidence that the petitioner shot the victim was not
overwhelming. In light of these facts, I would conclude that trial court’s failure to preserve the issue
by objecting to the trial court’s initial and supplemental instructions, as well as his failing to raise
the issue in the motion for new trial, constituted deficient performance.

        I also would have concluded that counsel’s actions in failing to preserve the issue for appeal
were prejudicial. To prove that counsel’s deficient performance prejudiced him, the petitioner must
show that “there is a reasonable probability that, but for counsel’s professional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome” Strickland v. Washington, 466 U.S. 668, 694 (1984). In
reviewing whether an appellate counsel’s performance prejudiced a petitioner, this court has
concluded that “the petitioner must show that there was a reasonable probability that the outcome
of the appeal would have been different.” Darryl Lee Elkins v. State, No. E2005-02153-CCA-R3-
PC, 2008 WL 65329, at *5 (Tenn. Crim. App. Jan. 7, 2008), perm. app. denied, (Tenn. May 27,
2008).1 Courts in several other states have adopted this standard for evaluating whether an appellate
counsel’s performance prejudiced the petitioner. See, e.g., Nixon v. State, 932 So. 2d 1009, 1023
(Fla. 2006); Nelson v. Hall, 573 S.E.2d 42, 43 (Ga. 2002); Pierson v. State, 637 N.W.2d 571, 579
(Minn. 2002).

        Although the deficient performance in this case was rendered by trial counsel, rather than
appellate counsel, applying the above standard to the instant case, in my view, clearly shows that trial
counsel’s deficiency in failing to preserve the issue prejudiced the petitioner on appeal. Had trial
counsel preserved the issue regarding the jury instruction, there was a reasonable probability that this
court would have reversed the petitioner’s convictions—in other words, there was a reasonable
probability that the outcome of the petitioner’s appeal would have been different. An erroneous jury
instruction is subject to harmless error analysis on appeal. State v. Garrison, 40 S.W.3d 426, 433-34
(Tenn. 2000). Omission of a lesser included offense is a non-structural constitutional error, see State
v. Page, 184 S.W.3d 223, 230 (Tenn. 2006), so it can be inferred that an error regarding an
instruction on a defense is also a non-structural constitutional error. “A non-structural constitutional
error requires reversal unless the State demonstrates beyond a reasonable doubt that the error is
harmless.” State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). A non-structural constitutional
error may be considered harmless only when it appears beyond a reasonable doubt that the error


         1
           Of note, the author of the majority opinion in the present case filed a separate opinion in Darryl Lee Elkins
concurring in the results but asserting that the standard for determining the effectiveness of appellate counsel “is the
same for trial counsel, that is, whether a reasonable possibility that, but for counsel’s deficiency, the outcome of the trial
would have been different.” Darryl Lee Elkins, 2008 WL 65329, at *9 (Tipton, P.J., concurring). The concurring
opinion also stated, “At least two states focus the prejudice inquiry of the ineffective assistance of appellate counsel on
the result of the trial, rather than the appeal.” Id. at *11 (citing Bunkley v. Commn’r of Correction, 610 A.2d 598, 608
(Conn. 1992); Gering v. State, 382 N.W.2d 151, 156 (Iowa 1986)).

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complained about did not contribute to the result obtained. Id. Given the nature of the evidence in
this case, a reasonable probability exists that this court would have concluded that the State could
not have proven beyond a reasonable doubt that the trial court’s error in instructing the jury that the
petitioner’s not guilty plea included “his plea” of self defense did not contribute to the jury’s guilty
verdict.

        Based on the foregoing, I would have concluded that trial counsel rendered ineffective
assistance by failing to preserve the issue regarding the self-defense jury instruction on appeal and
granted the petitioner relief, resulting in a new trial.



                                                        _______________________________
                                                        D. KELLY THOMAS, JR., JUDGE




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