         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 4, 2003 Session

               CORW YN E. WINFIELD v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                         No. P 26030    James C. Beasley, Jr., Judge



                  No. W2003-00889-CCA-R3-PC - Filed December 10, 2003


The petitioner appeals the denial of post-conviction relief relating to his conviction for second
degree murder. He argues: (1) the trial court at his original trial improperly instructed the jury
regarding the definition of “knowing”; (2) the prosecutor committed misconduct during closing
argument at the original trial; and (3) he did not receive the effective assistance of counsel at trial
and on appeal. We affirm the judgment of the post-conviction court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN EVERETT
WILLIAMS, JJ., joined.

Edward Witt Chandler, Mountain Home, Arkansas, for the appellant, Corwyn E. Winfield.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        A Shelby County jury convicted the petitioner of second degree murder for shooting his
girlfriend as they were driving in his car. His conviction was affirmed on appeal. See State v.
Corwyn E. Winfield, No. W2000-00660-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 522 (Tenn.
Crim. App. July 11, 2001, at Jackson). The petitioner subsequently sought post-conviction relief,
which was denied. This appeal followed.

                                         BACKGROUND

        According to our opinion in the direct appeal, the following proof was presented during the
petitioner’s original trial:

             The defendant and the victim, Chijuana Bassett, both in their early twenties at
       the time of the offense, had been in a romantic, but apparently volatile, relationship
since their high school days at Fairley High School in Memphis and together had a
five-year-old daughter. The relationship had lasted some nine years. . . .

...

      The defendant gave two different explanations of the shooting to investigators.
According to the first oral statement, . . . the victim called the defendant at his home
on November 25, 1997, and said that she had gotten off work early by giving an
excuse about having to pick up their daughter from school because the child was
sick. She told the defendant that she wanted to come over to his house. The
defendant was cooking something when he heard her drive up and stop in front of
his house. When she did not immediately come to the door, he looked outside and
saw her slumped over in the car. He went to check on her and realized that she had
been shot. The defendant said that he then dragged the victim from her car into his
1993, three-door, green Honda Civic and drove her to the emergency room at
Methodist Hospital-South.

      After Sergeants Shemwell and Logan had told the defendant of information
they had which was inconsistent with this version of the shooting, the defendant then
gave a second version. According to the defendant’s second version of events, what
actually happened was that the victim had paged him from the Circle K on Shelby
Drive at approximately 1:30 p.m. When he called her back, she told him she had
taken off work early. He told her to come on to the car wash where he was waiting
to have his car cleaned. They then drove in her car to a liquor store where he
purchased gin. They went back to get his car and then drove to his house where they
continued drinking. Subsequently, they left his house in his Honda Civic and were
driving east on Shelby Drive when the victim mentioned something about the
defendant’s handgun. He took the gun out from underneath his seat and the following
occurred, according to the defendant:

                She said, “You ain’t gonna do nuthin with it so put it up.” So,
      I said, “Whatever.” So at that time I had my right arm around her seat and
      I was stearing [sic] the car with my right knee and I had the gun in my left
      hand. At that point, I had cocked it. She reached over as I was uncocking
      the gun and she grabbed my hand and the gun fired.

                When the gun fired, I looked at Chijuana and she was like
      coughing so I looked down and seen that she had been shot under her left
      arm near her breast so I drove to Swinnea Road and made a left, then I
      drove to Winchester and made a left. About Winchester and Airways I
      called Vonrico from my cellular phone (605-0947) and I told him that I
      had accidentally shot my girl and I didn’t know what to do. So, he told
      me to take her to the hospital and I told him that’s where I was headed and
      he said that he would meet me there. So I drove down Winchester ‘till I
      got to Graceland and made a left and drove down Graceland past the first

                                          -2-
      stop sign and I threw the gun out in a gutter on Graceland by some leaves
      on the east curb. I continued down Graceland to Raines Road where I
      made a right [and] went [down] Faronia where I made a left and drove to
      Methodist South Emergency Room.

      ...

      Thus, the defendant maintained that the shooting was accidental. Although he
chose not to testify, in his statement read to the jury, the defendant denied that he and
the victim were fighting or arguing at the time of the shooting. In fact, the defendant
claimed that the two were making plans to marry before Christmas. The defendant
explained the presence of several long scratches on the back of his neck in the
following statement, “When I get my hair cut, the back of my neck itches a lot so I
scratch it with my nails and I have a rash on both sides of my neck and they itch a
lot.”

      Dr. O’Brian Cleary Smith, Shelby County Medical Examiner, testified
concerning the victim’s injuries and the cause of death. He said that the victim was
five feet, four inches tall and weighed 218 pounds. The victim had bruised muscles
on the right and left side of the hyoid bone, the bone right underneath the jaw, as well
as bleeding behind the esophagus. Dr. Smith testified that such injuries were
consistent with a “blow to the throat or it could be a squeezing type action which
would cause the tissues to be crushed underneath.” Dr. Smith also stated that it was
possible to damage underlying tissues without damaging the skin. The choking type
injuries to the victim were described by Dr. Smith as “contemporaneous” with the
gunshot wound, in that the injuries to the victim’s neck could have occurred no more
than an hour prior to the gunshot wound. Dr. Smith testified further that the injuries
to the victim’s neck could not have been caused by the intubation of the victim during
the emergency room resuscitation procedures.

       The gunshot wound suffered by the victim was classified by Dr. Smith as a
“loose contact gunshot wound” or one where the muzzle of the weapon “would had
[sic] been pressed up against the cloth surface and the cloth up against the skin at the
time the weapon was fired.” It was a wound that would cause death in about seven
to eight minutes without intervention. . . .

...

      The bullet taken from the victim’s body was identified by Tennessee Bureau of
Investigation Special Agent Steve Scott as a .22 caliber bullet. According to the
defendant’s statement, the victim was shot with a “.22 caliber revolver, 6-shot, black
with pistol grip handles,” a weapon he claimed to have thrown from his car. A
thorough search by police of the area where the defendant said he threw the weapon
was unsuccessful. Officer Robert Martin of the Memphis Police Department testified
that on August 19, 1998, some nine months after the shooting, he and his partner

                                          -3-
       recovered a .22 caliber revolver with pistol grip handles from the trunk of the green
       Honda Civic owned by the defendant. Special Agent Scott was unable to determine
       conclusively that the bullet taken from the victim’s body had been fired from the
       weapon retrieved from the defendant’s car trunk, but neither was he able to exclude
       the weapon as the murder weapon. Laboratory results were inconclusive.

Id. at **2-11 (footnotes omitted).

                         PROOF AT POST-CONVICTION HEARING

         At the post-conviction hearing, the petitioner’s trial counsel testified that he was prepared
for trial, was ready to cross-examine the state’s witnesses, and was ready to present the defense
theory that the shooting was accidental. Trial counsel indicated his trial strategy was formed based
upon all the evidence available to him at the time of trial. He stated he received discovery from the
state, met with state witnesses, and investigated the route the petitioner drove to the hospital. He
said he met with the petitioner on several occasions prior to trial, and they discussed the state’s
evidence, potential witnesses, and trial strategy. According to trial counsel, a “character” defense
was not viable because of the petitioner’s prior inconsistent statements.

       Trial counsel testified he did not file a motion seeking evidence of gunpowder on the victim’s
hands. He explained that while the presence of gunpowder on the victim’s hands would have
corroborated the petitioner’s statement that the victim grabbed the gun, it did not establish that the
shooting was accidental. Further, he said that if a test revealed the absence of gunpowder, this would
have conflicted with the petitioner’s statement and would have been very detrimental. Thus, trial
counsel saw no real benefit to a gunpowder residue test.

        Trial counsel did not file a pre-trial motion to suppress evidence of the pistol found in the
petitioner’s car. Trial counsel explained the gun was found when the police arrested the petitioner
on unrelated charges a few months before his trial. He testified the general sessions court
suppressed the evidence due to an illegal search of the petitioner’s vehicle, and the charges were
dismissed. At trial, he objected to the admissibility of evidence concerning the weapon, but the trial
court overruled his objection. At the post-conviction hearing, he opined the pistol was not “fatal”
to the petitioner’s case because there was no ballistics match between the pistol and the bullet that
killed the victim.

        Trial counsel stated he was surprised by the testimony of the medical examiner, Dr. Smith,
regarding the injuries to the victim’s throat. He indicated he spoke with Dr. Smith prior to trial, but
Dr. Smith did not express these views about the injuries to the victim’s throat. According to trial
counsel, neither the autopsy nor Dr. Smith’s written report indicated the victim’s throat had been
squeezed. He opined it was “out of character” for Dr. Smith to testify to information not found in
his written report.

         Trial counsel said that as part of his investigation, he also spoke with Dr. McMillan, who
testified that he did not believe the intubation during the emergency room procedure caused the
injuries. He said he discussed the victim’s intubation with Dr. J. Pervis Milnor, a physician who had

                                                 -4-
experience in trauma medicine, because “based on what I knew that there may be some issue about
it.” He said Dr. Milnor reviewed the autopsy report and opined the possibility of the intubation
causing the throat injuries was “remote.”

        Trial counsel stated he was also surprised by Dr. Smith’s use of the term “loosely applied”
regarding the proximity of the weapon to the victim when it was fired.1 He said he had never heard
that term before, but it “clearly conveyed” that the victim’s gunshot wound “was not a contact
wound.” He testified he did not object to Dr. Smith’s use of the term because it was not inconsistent
with their theory of defense; cross-examination about the meaning of the term might have elicited
harmful information; and there was no basis for an objection.

        The petitioner presented the affidavit of trauma surgeon Dr. John Otten, who questioned Dr.
Smith’s conclusions about the injuries to the victim’s throat. Dr. Otten opined in the affidavit it was
possible to cause such injuries during an emergency intubation. At the hearing, the petitioner
stipulated that the affidavit would not be introduced as evidence of the truth of the matters asserted
by Dr. Otten.

        Trial counsel testified he advised the petitioner of his right to testify, but did not encourage
him to testify due to his prior conflicting statements. The attorney stated he did not object to the
prosecutor’s closing argument that the petitioner went on a “wild ride around Whitehaven” after
shooting the victim. He explained he believed her statements were a “reasonable inference from the
proof ,” and raising an objection would call attention to her remarks. He said that the only issue he
raised on appeal involved the admissibility of evidence under Tennessee Rule of Evidence 404(b)
of the defendant’s alleged prior assault of the victim.

         The petitioner’s father, Tommy Winfield, testified that following Dr. Smith’s testimony at
trial, the petitioner’s brother, a respiratory therapist, advised trial counsel that patients were
frequently injured during intubation. Winfield stated trial counsel instructed them that the brother
could not testify because he was related to the petitioner. He also said that the petitioner took the
most direct route to the hospital following the shooting.

       The record established the trial court gave the jury the following instruction on the definition
of “knowingly” as it applied to the charged offense of second degree murder:

         “Knowingly” means that a person acts knowingly with respect to the conduct or to
         circumstances surrounding the conduct when the person is aware of the nature of the
         conduct or that the circumstances exist. A person acts knowingly with respect to a
         result of the person’s conduct when the person is aware that the conduct is
         reasonably certain to cause the result.




         1
          At trial, Dr. Smith testified the victim sustained a “loose contact gunshot wound.” Trial counsel used the term
“loosely applied” when cross-examining Dr. Smith.

                                                          -5-
                              POST-CONVICTION COURT’S FINDINGS

       The post-conviction court issued extensive findings and addressed each of the thirty-four
grounds for post-conviction relief alleged by the petitioner. In summary, the post-conviction court
found: (1) the trial court’s instruction defining “knowingly” by using the entire statutory definition
was harmless and did not prejudice the petitioner; (2) there was no prosecutorial misconduct; and
(3) each of the more than thirty specific allegations of deficiency of trial counsel was unfounded.
Accordingly, the post-conviction court denied relief.

                                             JURY INSTRUCTION

        The petitioner first contends he was entitled to post-conviction relief because the trial court
failed to properly instruct the jury regarding the definition of “knowingly” as it applied to the mens
rea element of second degree murder. The state concedes the jury instruction was in error, but
contends the failure to raise the issue on direct appeal waives the issue for post-conviction purposes.
We agree with the state.

         A “knowing killing of another” is second degree murder. Tenn. Code Ann. § 39-13-
210(a)(1). The trial court should have instructed the jury that “knowing” refers only to the result
of the defendant’s conduct, the death of the victim, and erred by including as part of the definition
the nature and circumstances surrounding the conduct. See State v. Page, 81 S.W.3d 781, 787-88
(Tenn. Crim. App. 2002). Regardless, the error was waived when it was not raised in the direct
appeal of the petitioner’s conviction. See Tenn. Code Ann. § 40-30-106(g). Further, the plain error
doctrine has no application in post-conviction relief proceedings. State v. West, 19 S.W.3d 753,
756-57 (Tenn. 2000). Accordingly, the post-conviction court did not err in refusing to grant relief
based on the erroneous jury instruction.2

                               PROSECUTOR’S CLOSING ARGUMENT

        Next, the petitioner maintains the post-conviction court erred in denying him relief because
the prosecution violated his right to due process during its closing argument at his original trial.
More specifically, he contends the state improperly relied upon the proof that he had previously
assaulted the victim. This court addressed this issue in the direct appeal of the petitioner’s conviction
and found the prosecutor’s argument was not improper. See Corwyn E. Winfield, 2001 Tenn. Crim.
App. LEXIS 522, at **23-24. Post-conviction relief is not available for grounds that have been
previously determined. Tenn. Code Ann. § 40-30-106(h) (2003). To the extent the petitioner alleges
further bases for prosecutorial misconduct during the original trial, those matters are waived for
failure to raise them on direct appeal. Id. § 40-30-106(g). This issue is without merit.




         2
          This issue is also discussed subsequently in this opinion as it relates to the petitioner’s claim of ineffective
assistance of co unsel.

                                                           -6-
                         INEFFECTIVE ASSISTANCE OF COUNSEL

         Finally, the petitioner argues his trial counsel did not provide him with effective
representation. In support of his argument, he cites numerous alleged errors on the part of trial
counsel. Based on our thorough review of the record, we conclude the post-conviction court did not
err in finding the petitioner failed to establish ineffective assistance of counsel.

A. Standard of Review

        When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the
burden is upon the complaining party to show (1) that counsel’s performance was deficient, and (2)
the deficiency was prejudicial in terms of rendering a reasonable probability that the result of the
trial was unreliable or the proceedings fundamentally unfair. See Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), our supreme court required that the services be rendered within the range of
competence demanded of attorneys in criminal cases. In reviewing counsel’s conduct, we assess
performance by eliminating the distorting effects of hindsight and evaluate the conduct from
counsel’s perspective at the time. Wiggins v. Smith, ___ U.S. ___, ___, 123 S. Ct. 2527, 2536, 156
L. Ed. 2d 471 (2003); Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).

        It is unnecessary for a court to address deficiency and prejudice in any particular order, or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694,
104 S. Ct. at 2068) (citations omitted).

         The petitioner bears the burden of proving the factual allegations that would entitle petitioner
to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). We review the
post-conviction court’s factual findings underlying a claim of ineffective assistance of counsel under
a de novo standard with a presumption that those findings are correct – unless the preponderance
of the evidence establishes otherwise. Burns, 6 S.W.3d at 461. However, the post-conviction
court’s conclusions of law – such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial – are reviewed under a de novo standard with no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted).

B. Tactical Decisions

        The petitioner argues trial counsel was ineffective for failing to disclose the incriminating
information against the petitioner in his opening statement. Similarly, he contends trial counsel’s
closing argument was weak; he failed to “zealously argue the differences of the substantive definitions
of the crime charged”; he “failed to explain and evaluate the significance of false claims by the
prosecutor”; and he failed to argue passionately. The United States Supreme Court has recently
addressed a habeas corpus petitioner’s claim that his trial attorney was ineffective during closing

                                                  -7-
argument. See Yarborough v. Gentry,           U.S.     , 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). In that
case, the Court stated “[j]udicial review of a defense attorney’s summation is . . . highly deferential.”
Id. at ___. The high court noted that although the right to the effective assistance of counsel extends
to closing arguments, counsel “has wide latitude in deciding how to best represent a client, and
deference to counsel’s tactical decisions in his closing presentation is particularly important because
of the broad range of legitimate defense strategy at that stage.” Id. at ___.

        We also observe trial counsel’s statements to the jury were clearly part of trial counsel’s trial
strategy, which was to show that the gun was fired accidentally. Deference is made for sound trial
strategy if the choices are informed and based upon adequate preparation. See Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996). The record established trial counsel’s strategy decisions were
informed ones based on adequate preparation. The petitioner has failed to establish trial counsel was
deficient.

C. Misstating the Law

         The petitioner also alleges trial counsel misquoted the applicable law during his closing
argument. However, the only citations to the record refer to the prosecution’s closing argument that
the petitioner was guilty of second degree murder if he killed the victim intentionally. This
statement was accurate. See Tenn. Code Ann. § 39-11-301(a)(2) (stating the “knowing” mens rea
is satisfied if the person acts “intentionally”). The petitioner has failed to establish trial counsel’s
performance was deficient.

D. The Pistol

        The petitioner contends trial counsel was ineffective in failing to object to the admissibility
of the pistol found in his car months after the offense because (1) it was irrelevant, and (2) it was
illegally seized. The trial record established trial counsel argued against the admissibility of this
evidence contending the state could not establish it was the murder weapon, but the trial court
allowed admittance. The petitioner also claims trial counsel erred in failing to appeal the issue. We
conclude, after a review of the trial record, that the seized .22 caliber weapon was relevant and
properly admitted at trial. In addition, the petitioner did not establish at the post-conviction hearing
that the pistol was illegally seized or otherwise subject to suppression. The petitioner has failed to
establish trial counsel’s performance was deficient or that he suffered prejudice as a result.

E. DNA Evidence

         The petitioner claims trial counsel failed to obtain DNA evidence to establish his skin or
cells were not found underneath the victim’s fingernails. However, the pathologist’s testimony at
trial established the victim’s “fingernails were clean.” We discern no deficiency. Further, there was
no proof at the post-conviction hearing as to what DNA testing would have revealed.




                                                  -8-
F. Impeaching the Officer

         The petitioner argues trial counsel failed to properly cross-examine Sergeant Shemwell, who
testified at trial regarding the petitioner’s prior statements. He maintains trial counsel should have
proven Sergeant Shemwell’s testimony was untruthful. Yet, the petitioner presented no evidence
to establish the officer’s testimony was false.

G. Not Interviewing and Not Using Witnesses

         The petitioner alleges trial counsel failed to interview key witnesses and failed to interview
and consider defense character witnesses; however, he does not name the potential witnesses he
claims trial counsel should have interviewed. The decision not to present character witnesses was
a tactical decision. Moreover, the only witnesses who testified at the post-conviction hearing were trial
counsel and the defendant’s father. “When a petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be presented by the
petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990); see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). Accordingly, the
petitioner failed to establish trial counsel was ineffective in failing to interview witnesses or present
their testimony at trial.

H. Failing to Challenge Expert Testimony

        The petitioner contends trial counsel should have argued Dr. Smith’s expert testimony
regarding the victim’s throat injuries was not reliable scientific evidence. See Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Similarly, he claims “loose contact” was not a scientific term. Our review of the record shows Dr.
Smith’s testimony regarding the victim’s throat injury was based on the autopsy as well as his
interview with the emergency physician who treated the victim. Further, during his testimony
regarding the victim’s gunshot wound, he explained what he meant by the term “loose contact
wound.” There is nothing in the record indicating Dr. Smith’s testimony was inadmissible. The
petitioner has not proven trial counsel was ineffective for failing to object to Dr. Smith’s testimony.

I. Examination of Dr. Smith

         The petitioner also argues trial counsel was ineffective for failing to interview Dr. Smith
prior to trial and for failing to properly cross-examine him. However, the proof at the hearing
established trial counsel interviewed Dr. Smith prior to trial and even reviewed Dr. Smith’s autopsy
report with another physician. Further, the trial record shows trial counsel extensively cross-
examined Dr. Smith. The petitioner further maintains trial counsel should have cross-examined Dr.
Smith regarding his salary and the number of times he had testified for the state. This type of cross-
examination is a matter of trial strategy, and the petitioner may not second-guess a reasonably based
trial strategy. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992). This argument lacks merit.



                                                  -9-
J. Failure to Obtain Expert

        The petitioner argues trial counsel failed to obtain expert testimony to rebut Dr. Smith’s
opinion that the victim’s throat was injured by squeezing or by a blunt trauma. The petitioner has
failed to establish that he was prejudiced. He presented Dr. Otten’s affidavit indicating the throat
injuries could reasonably have been caused by the medical treatment and there was no evidence of
choking. However, he stipulated the affidavit was not submitted to prove the truth of the matters
asserted by Dr. Otten.

       We fail to see any evidentiary value in the affidavit if it was not submitted for its truth.
Regardless, we are unpersuaded that the petitioner’s post-trial discovery of an expert who would
disagree with Dr. Smith’s opinions somehow translates into ineffective assistance of counsel. Dr.
David McMillan also testified at trial that the medical procedures did not cause any trauma to the
neck. In addition, trial counsel conferred with Dr. J. Pervis Milnor, a physician with experience in
trauma medicine, prior to trial. Dr. Milnor advised trial counsel that the possibility of the medical
procedures causing the neck injuries was “remote.” Trial counsel was not deficient in failing to seek
other expert assistance with regard to the neck injuries.

K. Route to Hospital

        The petitioner claims trial counsel failed to challenge the state’s theory that the petitioner
did not travel a direct route to the hospital following the shooting. The post-conviction court
determined the petitioner’s proof at the post-conviction hearing actually established that the
petitioner did not take the most direct route to the hospital. The post-conviction court further
concluded the proposed evidence would not have affected the outcome of the trial. The evidence
does not preponderate against these findings of the trial court.

L. The Smirk

        At trial, a police officer testified he observed the petitioner arrive at the hospital with the
victim. According to the officer, the petitioner had “a smirk type look on his face.” The officer
stated the petitioner’s expression changed to a “scared look” when he saw him. In this appeal, the
petitioner argues trial counsel was ineffective for not presenting the testimony of a psychological
expert to rebut the officer’s testimony. We are simply unable to conclude that trial counsel was
deficient for failing to secure expert testimony to explain facial expressions. Further, the petitioner
has failed to establish he was prejudiced by trial counsel’s alleged error because he did not present
any expert proof on this issue at the post-conviction hearing.

M. Failure to Testify

         The petitioner argues trial counsel improperly advised him about his right to testify. He
contends he would have made a good witness. The post-conviction court found, and the trial record
reflects, that the petitioner chose not to testify after trial counsel voir-dired him regarding his right
to testify. According to trial counsel, he did not encourage the petitioner to testify due to his prior
inconsistent statements. The petitioner did not testify at the post-conviction hearing. We cannot


                                                  -10-
conclude trial counsel was ineffective for not encouraging the petitioner to testify, nor does the
evidence preponderate against the post-conviction court’s finding that the petitioner decided not to
testify after being advised of his rights. The petitioner has failed to establish trial counsel’s
performance was deficient.

N. Failure to Object to Closing Argument

       The petitioner maintains trial counsel was ineffective for not objecting to the state’s closing
argument regarding the alleged prior assault. As previously discussed, this court, on direct appeal,
found the prosecution’s argument was proper. See Corwyn E. Winfield, 2001 Tenn. Crim. App.
LEXIS 522, at **23-24. This argument is without merit.

O. The “Knowing” Jury Instruction

        Although the petitioner did not specifically raise the issue in his initial brief, he argued in
his reply brief and at oral argument that trial counsel was ineffective for not raising the issue of the
trial court’s erroneous jury charge on the definition of “knowing” on appeal. It is arguable that he
has waived the issue. See Tenn. R. App. P. 27(a)(7). Regardless, we elect to address it.

        The petitioner’s case was tried in February 2000. Judgment was entered March 17, 2000.
Notice of appeal was filed March 23, 2000. The petitioner’s brief was filed December 28, 2000.
Oral arguments were heard May 8, 2001. This court entered its judgment and opinion affirming the
petitioner’s conviction on July 11, 2001.

       On July 14, 2000, our state supreme court filed its opinion in State v. Ducker, 27 S.W.3d
889 (Tenn. 2000). In holding that child abuse was not a result-of-conduct offense, the court stated
second degree murder was a result-of-conduct offense. Ducker, 27 S.W.3d at 896. However,
Ducker did not discuss jury charges.

         In the unreported opinion of State v. Keith T. Dupree, W1999-01019-CCA-R3-CD, 2001
Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Jan. 30, 2001, at Jackson), this court, facing an issue
of first impression, held the trial court erred by failing to charge the jury that the defendant must
have acted “knowingly” with regard to the result of his conduct to be found guilty of second degree
murder. Id. at **11-12.

       On April 16, 2002, this court issued its opinion in State v. Page, 81 S.W.3d 781 (Tenn. Crim.
App. 2002), in which we held the trial court erred in instructing the jury that the defendant could be
convicted of second degree murder if he acted knowingly with respect to his conduct and the
circumstances surrounding the offense. Id. at 786. In Page, we stated

       [I]t is now established that a knowing second degree murder is strictly a result-of-
       conduct offense . . . . A jury instruction that allows a jury to convict on second degree


                                                 -11-
        murder based only upon awareness of the nature of the conduct or circumstances
        surrounding the conduct improperly lessens the state’s burden of proof.

Id. at 788 (citation omitted).

        We begin our analysis of this question by noting that the Page opinion was filed more than
nine months after the petitioner’s appeal was concluded. Ducker was decided after the trial of this
case; thus, defense counsel could only raise this issue on appeal under the plain error doctrine. See
Tenn. R. App. P. 52(b). While it is arguable appellate counsel could have anticipated our holding
in Page based upon Ducker and Dupree, we do not find his performance was deficient for failing to
do so. As we observed in Page, Ducker was not a second degree murder case and did not discuss jury
charges. See Page, 81 S.W.3d at 788. Furthermore, the jury instruction in Dupree was distinguishable
from the jury charge in both Page and the instant case. See id. In addition, Dupree was decided
after the petitioner’s brief was filed and shortly before oral argument. Given this chronology of
events, we cannot conclude trial counsel’s performance was deficient.

P. Unsupported Allegations

        The petitioner contends trial counsel failed to properly investigate or prepare for trial, failed
to properly interview the petitioner, failed to obtain exculpatory evidence, failed “to perform his
duties,” and failed to obtain and analyze the evidence. He claims trial counsel failed to obtain
scientific and forensic findings and failed to properly voir dire the jury. Further, he alleges trial
counsel failed to object to the misconduct of the prosecutor. These arguments are waived since the
defendant has failed to make appropriate references to the record. Tenn. Ct. Crim. App. R. 10(b);
State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); see also Tenn. R. App. P. 27(a)(7)
and (g).

                                           CONCLUSION

        The post-conviction court did not err in denying post-conviction relief. Accordingly, we
affirm the judgment of the post-conviction court.



                                                         ____________________________________
                                                         JOE G. RILEY, JUDGE




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