         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                        DECEMBER 1997 SESSION
                                                    FILED
                                                      March 18, 1998

                                                    Cecil Crowson, Jr.
CHARLES E. DORSE, JR.              )                Appellate C ourt Clerk
and EDDIE L. WILLIAMS,             )    NO. 02C01-9706-CR-00205
                                   )
      Appellants,                  )    SHELBY COUNTY
                                   )
VS.                                )    HON. CHRIS CRAFT,
                                   )    JUDGE
STATE OF TENNESSEE,                )
                                   )    (Post-Conviction)
      Appellee.                    )



FOR APPELLANT DORSE:                    FOR THE APPELLEE:

C. ANNE TIPTON                          JOHN KNOX WALKUP
140 North Third Street                  Attorney General and Reporter
Memphis, TN 38103-2007
                                        DEBORAH A. TULLIS
FOR APPELLANT WILLIAMS:                 Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
JIM N. HALE                             425 Fifth Avenue North
(At Hearing)                            Nashville, TN 37243-0493
147 Jefferson Avenue, Suite 1204
Memphis, TN 38103                       WILLIAM L. GIBBONS
                                        District Attorney General
GERALD STANLEY GREEN
(On Appeal)                             DANIEL R. WOODY
147 Jefferson Avenue, Suite 1115        Assistant District Attorney General
Memphis, TN 38103                       201 Poplar Avenue, Suite 301
                                        Memphis, TN 38103-1947




OPINION FILED:



DORSE - AFFIRMED IN PART; DELAYED APPEAL GRANTED
WILLIAMS - AFFIRMED



JERRY L. SMITH,
JUDGE
                                       OPINION



       The petitioners, Charles E. Dorse, Jr. and Eddie L. Williams, appeal the order

of the Shelby County Criminal Court denying their respective petitions for post-

conviction relief after an evidentiary hearing.        On appeal, petitioners allege

ineffective assistance of both trial and appellate counsel. Dorse further argues that,

at trial, the jury was charged with an unconstitutional reasonable doubt instruction.

Williams presents three additional issues: (1) whether the original trial court properly

refused to suppress his statement to the police; (2) whether the original trial court

properly refused to sever the defendants; and (3) whether the post-conviction court

properly consolidated the subject petitions at the hearing. Because we agree with

the trial court’s finding that Dorse’s trial counsel failed to notify him of his right to

seek second tier appellate review, we grant him the right to seek a delayed appeal

to the Tennessee Supreme Court. In all other respects, the judgment of the trial

court is affirmed.



                             FACTUAL BACKGROUND



                                       A. Trial

       The petitioners were convicted after a jury trial of first degree murder in the

perpetration of a robbery.      Both were sentenced to life imprisonment. Their

convictions were affirmed by this Court. State v. Charles Edward Dorse, Jr. and

Eddie Louis Williams, C.C.A. No. 02C01-9103-CR-00023, Shelby County (Tenn.

Crim. App. filed April 1, 1992, at Jackson). We will recite the facts as set out by this

Court on direct appeal:

              On May 7, 1988, at approximately 4:15 a.m., the victim was
       shot by the defendant Dorse. The undisputed proof was that the
       victim had been in a grocery store and was returning to his vehicle
       when he was approached by the defendants. After entering his
       vehicle from the driver's side, he was required to slide across to the
       passenger side while the defendant Williams got in the driver's seat
       and the defendant Dorse got in the back seat.

             Two witnesses in a parked vehicle then saw the defendant
       Dorse fire a shot into the victim's head but did not see any scuffle

                                           2
         prior to the firing of the pistol. At this point these witnesses observed
         the two defendants exit the vehicle and run from the scene. Prior to
         hearing the gunshot one of these witnesses had also seen the
         defendant Dorse strike the victim in the head.

                 In addition, the mother of the two witnesses recalled seeing the
         defendants standing outside the grocery store when she had entered
         the store. All three witnesses identified the defendant Dorse from
         pretrial photographic displays and at trial. One witness also positively
         identified the defendant Williams from a pretrial photographic array
         and at trial.

                 Having been called by the State, a friend of the defendants
         testified that the defendants had borrowed two pistols from him, one
         of which had not had ammunition. He further testified that they had
         returned these pistols on the following morning and that the defendant
         Dorse had admitted to him that they had killed someone.

                 In addition, redacted versions of the defendants' statements
         given to an officer with the Memphis Police Department were read at
         the trial. In his statement the defendant Dorse admitted that he was
         going to take the victim's automobile. He further acknowledged
         shooting the victim with a .22 caliber revolver but stated that the pistol
         had discharged after the victim had grabbed for it. The defendant
         Williams admitted he had intended to rob the victim of his money.
         Williams also stated that he had pulled the unloaded weapon on the
         victim and forced him into the vehicle. He added that after he had
         entered on the driver's side, the victim had grabbed for his pistol.

                Testifying in his own behalf, the defendant Dorse's version of
         the events had changed somewhat from his original statement to the
         officers. At trial he denied having known that a robbery had been
         about to take place and claimed that he had shot the victim when he
         had observed the victim grabbing for the defendant Williams' pistol.
         His confusing explanation for his previous contradictory statement
         was that he had not wanted his mother to know that he had just shot
         the man but rather that the shooting was part of an “accidental
         robbery”.

State v. Charles Edward Dorse, Jr. and Eddie Louis Williams, slip op. at 2-4.

                             B. Post-Conviction Hearing

                                            (1)

         At the post-conviction hearing, Dorse testified that he only had two “out-of-

court visits” with his trial counsel in preparation for and throughout the course of the

trial.   He claimed that he and his attorney never talked about the facts and

circumstances of his case.         He testified that his attorney did not thoroughly

investigate, did not file any motions, and refused to interview or present any

witnesses at the trial and suppression hearing. He further claimed that trial counsel

did not inform him of the adverse decision of this Court affirming his conviction.

         Dorse’s attorney, Martin Kriger, testified at the hearing as well. He stated

                                             3
that he talked with Dorse on numerous occasions and discussed with him the

particular facts of the case. He received full discovery from the state, including the

names of witnesses, the facts of the case and Dorse’s statement to the police. He

filed a motion to adopt the motions filed by Dorse’s co-defendant, which included

a motion to suppress his pre-trial statement to the police. He stated that Dorse

never expressed any complaints concerning his representation.              Although he

testified that it was his practice to notify his clients of any adverse decision from the

Court of Criminal Appeals, he had no recollection of doing so in this case.

                                          (2)

       Petitioner Williams testified that he was represented at trial by Robert Jones

of the Shelby County Public Defender’s office. He claimed that Jones discussed his

case fully with him, but convinced him not to testify at the suppression hearing and

at trial against his own wishes. He claimed that his statement to the police was

involuntary as it was illegally obtained. He also stated that Jones did not contact

potential defense witnesses in preparation for trial. He further claimed that his

appellate counsel, Mark Ward, did not discuss with him the issues that would be

raised on appeal.

       Trial counsel, Robert Jones, testified that he discussed the case fully with

Williams, obtained discovery from the state, spoke with state’s witnesses, filed pre-

trial motions and had hearings on those motions. He could not recall whether

Williams requested that he present witnesses in his defense. He also stated that

Williams chose not to testify.

       Appellate counsel Mark Ward, also with the Public Defender’s office, testified

that the only appellate issue which he considered having possible merit was the

sufficiency of the evidence. He further stated that it was not his usual practice to

confer with a defendant while preparing the appeal.



                                          (3)

       The post-conviction court made extensive findings of fact and conclusions

of law in separate, written orders. Regarding petitioner Dorse, the court found that



                                           4
attorney Kriger was not deficient, nor did Dorse suffer any prejudice as a result of

trial counsel’s representation. However, the trial court did find that Dorse did not

receive effective notice of the adverse decision from this Court. On Williams’

petition, the trial court found that neither trial counsel nor appellate counsel was

ineffective in any of the alleged instances. Moreover, the trial court found that

petitioner Williams could not demonstrate prejudice. Therefore, the trial court

denied relief.1



                   POST-CONVICTION STANDARD OF REVIEW



       The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn.

Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a jury

verdict, and this Court is bound by the trial court’s findings unless the evidence in

the record preponderates against those findings. Henley v. State,                 S.W.2d

(Tenn. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This

Court may not reweigh or reevaluate the evidence, nor substitute its inferences for

those drawn by the trial judge. Henley v. State,          S.W.2d at       ; Massey v. State,

929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the

weight and value to be given to their testimony are resolved by the trial court, not

this court. Henley v. State,        S.W.2d at       ; Black v. State, 794 S.W.2d at 755.

The burden of establishing that the evidence preponderates otherwise is on

petitioner. Henley v. State,        S.W.2d at       ; Black v. State, 794 S.W.2d at 755.




       1
         The post-conviction court made other findings of fact and conclusions of law which
are germane to this appeal, including: (1) the reasonable doubt jury instruction given at trial
was constitutional; (2) the trial court did not abuse its discretion in denying a severance of
defendants; (3) the trial court correctly refused to suppress both petitioners’ statements; and
(4) Williams’ appellate attorney was not ineffective for failing to challenge the suppression
ruling as there was no legal foundation to challenge the statement’s admissibility.

                                              5
                   INEFFECTIVE ASSISTANCE OF COUNSEL



                               A. Standard of Review

       Both petitioners claim that they received ineffective assistance of counsel at

trial. This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

       The test in Tennessee in determining whether counsel provided effective

assistance is whether counsel’s performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the

wide range of acceptable professional assistance. Strickland v. Washington, 466

U.S. at 689, 104 S.Ct. at 2065; State v. Williams, 929 S.W.2d 385, 389 (Tenn.

Crim. App. 1996). Therefore, in order to prove a deficiency, a petitioner must show

that counsel’s acts or omissions were so serious as to fall below an objective

standard of reasonableness under prevailing professional norms. Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State,            S.W.2d at

  ; Goad v. State, 938 S.W.2d at 369.

       In reviewing counsel's conduct, a “fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time.” Strickland v. Washington, 466 U.S. at 689, 104

S. Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense,

does not, standing alone, establish unreasonable representation. However,

deference to matters of strategy and tactical choices applies only if the choices are



                                           6
informed ones based upon adequate preparation. Goad v. State, 938 S.W.2d at

369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Cooper v. State, 847 S.W.2d

521, 528 (Tenn. Crim. App. 1992).

                                      B. Dorse

       Dorse claims that he received ineffective assistance of counsel at trial. In

this regard, he contends that trial counsel failed to adequately prepare for trial,

failed to properly investigate all possible witnesses for trial and the suppression

hearing, failed to properly conduct discovery and failed to file necessary pre-trial

motions. He further argues that he received ineffective assistance of appellate

counsel in that his attorney failed to inform him of his right to seek second tier

appellate review.

                          (1) Failure to Prepare for Trial

       Dorse argues that trial counsel did not fully discuss the circumstances of his

case. He testified that he met with his attorney only twice outside of the courtroom.

He claimed that his attorney never discussed a trial strategy with him, reviewed his

confession or discussed possible witnesses. Essentially, he testified that he and his

attorney never discussed anything meaningful.

       However, trial attorney Kriger testified that he researched and prepared for

trial. He spoke with Dorse on numerous occasions, and they had “extensive

meetings” immediately prior to trial and during the trial. Although Dorse insisted on

testifying at trial, Kriger attempted to develop a trial strategy which would attack the

eyewitness testimony. However, because Dorse admitted at trial that he was

present during the crime, Kriger was not able to develop that strategy.

       The trial court specifically found Dorse’s testimony to be incredible. The

court further found that the trial record fully supported Kriger’s testimony and found

no evidence that Kriger was deficient. The evidence in the record before this Court

does not preponderate against that finding. This allegation is without merit.

                       (2) Failure to Investigate Witnesses

       Next, Dorse claims that Kriger failed to properly investigate potential

witnesses to be used at the suppression hearing and at trial. He testified at the


                                           7
post-conviction hearing that he was seventeen at the time of his arrest. His mother

was present during the police interview. Although she signed a waiver allowing the

police to interrogate her son, Dorse claims that she was addicted to drugs at the

time and did not have the requisite mental state to surrender his right to remain

silent. Because of this, Dorse claims that she had “vital information” to offer, and

his attorney was deficient in not calling her to testify at the suppression hearing.

         In support of this allegation Dorse’s first cousin, Denee Dorse Spencer,

testified that she was aware of Dorse’s mother’s drug addiction.2 However, she was

not aware whether Dorse’s mother used drugs on that occasion.

         Nevertheless, even if this Court were to accept this allegation as true, Dorse

has not demonstrated that he was prejudiced. As the trial court correctly noted,

“[e]ven if he could somehow show that his mother was using drugs at the time of the

statement, this would not prove that her consent, or his consent and waiver of his

Miranda rights was not voluntary.” See State v. Lundy, 808 S.W.2d 444, 446 (Tenn.

1991).       Dorse failed to show that his confession was otherwise involuntary.

Furthermore, Dorse has not shown what “vital information” his mother could have

offered if she had been called to testify at the suppression hearing. Accordingly,

because Dorse has not demonstrated prejudice, this allegation must fail.

         Dorse also claims that Kriger did not contact other witnesses in preparation

for trial. Three witnesses, as well as Spencer, testified at the post-conviction

hearing. Although they all claimed that Kriger did not contact them prior to trial,

none of these witnesses had first-hand knowledge of the crime. Dorse has not

shown how he was prejudiced by the failure to contact these witnesses. Therefore,

this allegation is without merit.

                             (3) Failure to Conduct Discovery

         Dorse claims that his attorney failed to properly conduct discovery. Although

he concedes that his attorney received discovery from the state, he complains that

the discovery motion was not filed until the first day of trial. He argues that his

attorney did not have enough time to properly review such discovery. However, he


         2
             Dorse’s mother died prior to the post-conviction hearing.

                                                8
has failed to demonstrate how he was prejudiced by the alleged actions of his

attorney. As such, this allegation has no merit.

                        (4) Failure to File Pre-Trial Motions

       Dorse also asserts that trial counsel was ineffective in failing to file

necessary pre-trial motions. Prior to trial, Kriger filed a motion to adopt the pre-trial

motions of the co-defendant, Williams. The post-conviction court listed seventeen

(17) motions filed by W illiams, including the motion to suppress his pre-trial

statement to the police. The trial court granted the request to adopt the motions,

and an evidentiary hearing was held on these motions. The post-conviction court

found that Kriger was “completely prepared” to present the motions and did an

“excellent job.”

       This Court finds that Kriger was not deficient in choosing to adopt the co-

defendant’s motions. Furthermore, Dorse has not proven that he was prejudiced

by this procedure. This allegation is without merit.

                                 (5) Failure to Notify

       In his final assertion of ineffective assistance of counsel, Dorse claims that

his attorney on direct appeal did not inform him of the adverse decision of this Court

affirming his conviction. Therefore, he was not able to seek second tier appellate

review by the Tennessee Supreme Court. The trial court found that Dorse should

be granted a delayed appeal. We agree.

       Although Kriger testified that it was his usual practice to notify his clients of

any adverse decision by the Court of Criminal Appeals, he had no specific

recollection of doing so in this instance. Dorse testified that he learned of the

adverse decision after the time had expired to apply for permission to appeal.

When a defendant is denied second tier appellate review through no fault of his

own, he is entitled to a delayed appeal. Pinkston v. State, 668 S.W.2d 676, 677

(Tenn. Crim. App. 1984).

       We, therefore, grant Dorse the right to seek a delayed appeal to the

Tennessee Supreme Court. We vacate our judgment of April 1, 1992, and reinstate

it as of the date of the release of this opinion.



                                           9
                                    C. Williams

       Williams argues that he received ineffective assistance of trial and appellate

counsel. He contends that trial counsel was deficient in failing to demonstrate that

Williams knowingly and voluntarily chose not to testify and by failing to object to the

testimony of Dorse, his co-defendant. He claims that trial counsel was ineffective

in failing to include “pertinent and meaningful assignments of error” in the motion

for new trial. He further claims that appellate counsel was ineffective in failing to

amend the motion for new trial in order to present “pertinent and meaningful issues”

on appeal.

                                  (1) Trial Counsel

       Williams’ first complaint with trial counsel is that trial counsel failed to

demonstrate that Williams waived his right to testify. At the post-conviction hearing,

Williams claimed that he wanted to testify at both the suppression hearing and at

trial, but that his attorney would not let him testify. Trial counsel, Robert Jones,

testified that W illiams made the decision not to testify.

       Williams testified at the post-conviction hearing that he wanted to explain to

the jury that he only intended to rob the victim, but did not intend to kill him.

However, because petitioners were convicted of a reckless killing in the perpetration

of a robbery, this testimony would have essentially proven an element of the state’s

case. Because such testimony would have been extremely detrimental to the

defense, Williams cannot prove prejudice by his failure to testify.

       Furthermore, the post-conviction court found that trial counsel’s advice not

to testify was a sound tactical choice, and Williams voluntarily chose not to testify.

Therefore, the trial court found no deficiency. The evidence does not preponderate

against this finding. This allegation has no merit.

       Williams also claims that trial counsel should have objected to his co-

defendant’s testimony at trial and should have requested a jury-out hearing of this

testimony. He bases this argument on the fact that his co-defendant implicated him

during his trial testimony. However, Williams has not provided this Court with any

reason why this testimony should not be admissible. The fact that such testimony



                                          10
was “devastating” does not render it inadmissible. Therefore, his attorney cannot

be deficient for failing to object. This allegation has no merit.

       Williams further asserts that trial counsel was deficient for failing to allege

“meaningful” and important issues in the motion for new trial, thereby failing to

preserve such issues for appellate review. However, Williams fails to assert which

issues he considers meaningful ones. Accordingly, he cannot demonstrate how he

was prejudiced by trial counsel’s failure to allege other issues in the motion for new

trial. This allegation is without merit.

                               (2) Appellate Counsel

       Finally, Williams contends that he was denied the effective assistance of

appellate counsel in that counsel only alleged insufficiency of the evidence on

appeal.

       It is counsel’s responsibility to determine the issues to present on appeal.

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986). This responsibility

addresses itself to the professional judgment and sound discretion of appellate

counsel. Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995). There is no

constitutional requirement that every conceivable issue be raised on appeal.

Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995). The determination of which

issues to raise is a tactical or strategic choice. Id.

       Appellate counsel, Mark Ward, testified that after reading the technical record

and the transcripts from the pre-trial hearing and trial, he determined that sufficiency

of the evidence was the only reasonable issue that he could raise on appeal. The

post-conviction court found “no showing by petitioner of either deficient performance

or prejudice to petitioner in his appeal.” We agree. This allegation is without merit.



                  REASONABLE DOUBT JURY INSTRUCTION



       Dorse also argues that the jury instruction given at trial on “reasonable doubt”

is constitutionally infirm as it violates due process. He contends that the jury

instruction defining “reasonable doubt” violates due process of law by lowering the


                                           11
burden on the state to prove guilt. Tennessee courts have consistently held that

using the phrase “moral certainty” in conjunction with an instruction that “reasonable

doubt is that doubt engendered by an investigation of all the proof in the case and

an inability, after such investigation, to let the mind rest easily as to the certainty of

guilt” is a valid instruction on reasonable doubt. Nichols v. State, 877 S.W.2d 722,

734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995);

Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994); State v. Hallock,

875 S.W.2d 285, 294 (Tenn. Crim. App. 1993).3 Therefore, this issue is without

merit.



                    SUPPRESSION OF WILLIAMS’ STATEMENT



         Williams argues that the original trial court erred in refusing to suppress his

post-arrest statement to the police. This issue is waived as it should have been

raised on direct appeal. See Givens v. State, 702 S.W.2d 578, 580 (Tenn. Crim.

App. 1985).

         Moreover, we do not find that appellate counsel was ineffective for failing to

raise this issue on direct appeal. Appellate counsel testified that he read the

suppression hearing and found no constitutional impropriety regarding Williams’

confession to the police. This Court will not second guess strategical or tactical

decisions made by counsel. See Hellard v. State, 629 S.W.2d at 9. Further, the

post-conviction court found that there was no legal foundation upon which to

challenge the statement. We agree.

         This issue is without merit.



                           SEVERANCE OF DEFENDANTS



         Next, Williams argues that the original trial court erred in failing to grant a


         3
         Moreover, the Sixth Circuit of the United States Court of Appeals agrees that the
language used in this instruction is constitutional. See Austin v. Bell, 126 F.3d 843, 847 (6th
Cir. 1997).

                                              12
severance of the defendants. This issue is also waived as it should have been

raised on direct appeal. See Givens v. State, 702 S.W.2d at 580.

       Furthermore, appellate counsel was not deficient for failing to raise the issue

on appeal as the issue has no merit. Although the state introduced the confessions

of both petitioners at trial, each of the statements was redacted prior to trial, thereby

eliminating any confrontation issues pursuant to Bruton v. United States, 391 U.S.

123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See Tenn. R. Crim. P. 14(c)(1). At trial

the co-defendant testified, thereby eliminating the Bruton problem. Furthermore,

Williams has failed to demonstrate how severance was necessary “to promote a fair

determination of [his] guilt or innocence.” Tenn. R. Crim. P. 14(c)(2)(i).

       This issue has no merit.



                         CONSOLIDATION OF PETITIONS



       Williams argues that the post-conviction court erred in consolidating the

hearings on the petition for post-conviction relief. However, there is no indication

in the record that either petitioner objected to consolidating the hearings on the

petitions. The issue is waived. See Tenn. R. App. P. 36(a). Furthermore, Williams

has not demonstrated how he was prejudiced by such consolidation. See Tenn. R.

App. P. 36(b). Therefore, he is entitled to no relief.

       This issue is without merit.



                                    CONCLUSION



       We find that both petitioners received effective assistance of counsel at both

the trial and appellate levels. However, because Dorse’s attorney failed to notify

him of his right to seek second tier appellate review, we grant him the right to seek

a delayed appeal to the Tennessee Supreme Court. Accordingly, we vacate our

judgment of April 1, 1992, and reinstate it as of the date of the release of this

opinion. In all other respects, the judgment of the trial court is affirmed.


                                           13
                                     JERRY L. SMITH, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




CURWOOD WITT, JUDGE




                                14
