        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs August 5, 2008

                 DARRELL JENNINGS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                            No. P-26688 Lee V. Coffee, Judge




                    No. W2007-01087-CCA-R3-PC - Filed October 21, 2009



The petitioner, Darrell Jennings, was found guilty by a Shelby County jury of second degree murder
and felony murder. The trial court merged the convictions, and the petitioner received a life
sentence. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial
counsel was ineffective. The post-conviction court denied the petition, and the petitioner now
appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL and D.
KELLY THOMAS, JR., JJ., joined.

James E. Thomas (on appeal) and Autumn Chastain (at trial), Memphis, Tennessee, for the appellant,
Darrell Jennings.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and Kirby May, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                       I. Factual Background

        On direct appeal, this court summarized the proof adduced at trial as follows:

                       In August 1998, sixteen-year-old Delmar Mason resided in
                Memphis with his seventy-one-year-old grandfather, Joe H. Mason.
                The proof established that Joe Mason conducted an unlicenced pawn
               shop business from his residence and routinely accepted for pawn or
               purchase cars, jewelry, and clothing, along with other items of
               property. In addition, he made cash loans and would cash checks. At
               approximately 12:30 a.m. on August 24th, Delmar, his grandfather,
               his uncle, and his grandfather’s friend had retired to bed when James
               “Gucci” Patterson and Kelvin Hooks arrived at the residence with a
               third-party check they wanted cashed. Joe Mason informed Patterson
               and Hooks that “the check wasn’t no good.” The two men left.

                       Approximately thirty minutes later, Patterson and Hooks
               returned to the residence accompanied by the [petitioner]. The
               [petitioner] was carrying “some Tommy Hilfiger clothes and [Hooks]
               came with . . . a leather jacket. . . .” Patterson, without saying a word,
               “sat on the couch, the opposite from [Joe Mason.]” Delmar Mason
               asked the [petitioner] “how much he wanted for the clothes.” At this
               point, “Kelvin Hooks pulled his gun out on [Delmar] and told [him]
               to lay down.” Delmar sat on the couch next to his grandfather. The
               [petitioner] and Hooks demanded money and the [petitioner] drew his
               weapon. Joe Mason stood up but was warned by the [petitioner],
               “Don’t move old man.” Disregarding the admonition, Joe Mason
               responded that he did not have any money and advanced toward the
               [petitioner], grabbing the gun away from him. Gunshots were fired
               and Delmar ran to his bedroom. James Patterson testified that after
               “Mr. Joe shot the gun,” “that’s when K-mack [Hooks] done what he
               done. He pulled his pistol . . . and went to shooting Mr. Joe.” The
               perpetrators fled the residence.

                       When Delmar returned, he saw his grandfather staggering by
               the coffee table. Eventually, Joe Mason fell to the floor. Mason died
               as a result of four gunshot wounds to his chest. Delmar Mason gave
               accurate descriptions of the [petitioner], Hooks, and Patterson. He
               also identified the [petitioner] as one of the perpetrators from a
               photographic line-up a few hours after his grandfather’s murder.

State v. Darrell Jennings, No. W1999-01036-CCA-R3-CD, 2000 WL 1863515, at **1-2 (Tenn.
Crim. App. at Jackson, Dec. 1, 2000) (footnote omitted).

       At the conclusion of trial, the jury found the petitioner guilty of felony murder in the
perpetration of or attempt to perpetrate a robbery, as charged in count two of the indictment, and
second degree murder, a lesser-included offense of first degree premeditated murder as charged in
count one of the indictment. Id. at *1. The trial court merged the convictions into a single
conviction for felony murder and sentenced the appellant to life imprisonment. Id. The petitioner
appealed his felony murder conviction, and this court affirmed that conviction. Id.


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        Subsequently, the petitioner filed a petition for post-conviction relief and several amended
petitions, alleging, among other grounds, that his trial counsel was ineffective. Specifically, the
petitioner complained that counsel met with him only one time prior to trial and did not adequately
prepare for trial. Additionally, the petitioner argued that counsel should have pursued a jury
instruction regarding the natural and probable consequences rule as set forth in State v. Howard, 30
S.W.3d 271 (Tenn. 2000). The petitioner acknowledged that his case was tried before the Howard
opinion was filed; however, he argued that Howard “was a reaffirmation” of State v. Carson, 950
S.W.2d 951 (Tenn. 1997).

        At the post-conviction hearing, trial counsel testified that he represented the petitioner at trial
and on appeal. Trial counsel said that since the petitioner’s trial, he had moved his office to a new
location. After the move, trial counsel could not locate the petitioner’s case file and was unable to
recall many specific details regarding the petitioner’s trial. Nevertheless, trial counsel stated that he
met with the petitioner a sufficient number of times to prepare for trial. He maintained that he would
have requested a continuance if he had been unprepared for trial.

        Trial counsel stated that he received discovery from the State and that he shared the discovery
materials with the petitioner. Trial counsel stated that he believed he had interviewed all individuals
related to the case or had at least reviewed the statements of the witnesses who were identified in the
discovery materials. The petitioner’s defense at trial was that he was present at the scene of the
offense but that he did not have a gun and did not know that a robbery would occur. Trial counsel
acknowledged that the State’s proof at trial showed that the petitioner had a gun at the scene and
actively participated in the robbery.

        Trial counsel opined that the State’s case was based on the petitioner’s criminal responsibility
for the actions of Hooks, the shooter. Trial counsel stated that the defense theory at trial was that
the petitioner was not the shooter, did not know what Hooks was going to do, and was not criminally
responsible. He recalled that the trial court instructed the jury according to the pattern jury
instructions that were in place at the time of trial. Counsel said that, to the best of his recollection,
during deliberations the jury asked the trial court if the petitioner could be found guilty of felony
murder if all the elements of robbery had not been completed.1

       Counsel said that in 2000, while the petitioner’s direct appeal was pending, the Tennessee
Supreme Court released its opinion in Howard, holding that when a defendant’s guilt is based on
criminal responsibility for the actions of another, the trial court must instruct the jury on the natural


        1
            On direct appeal, this court observed that the jury asked the trial court

                   “Does count two, homicide first degree murder, killing in the perpetration of other
                   crimes include attempted robbery to the extent that essential elements of robbery,
                   specifically number four and five, not necessarily be satisfied, i.e. took indicates the
                   robbery was successful rather than just attempted.”

Jennings, No. W 1999-01036-CCA-R3-CD, 2000 W L 1863515, at *5.

                                                             -3-
and probable consequences rule.2 He acknowledged that Carson, which discussed the natural and
probable consequences rule, had been released prior to the petitioner’s trial. However, trial counsel
opined that “Howard . . . used the definitive language, basically, in my opinion, to do away with the
felony murder rule, you know, when somebody had a theory of criminal responsibility.” Trial
counsel said he did not raise the issue regarding an instruction on the natural and probable
consequences rule in his appellate brief, but he raised the issue in his application for permission to
appeal to the supreme court. When asked if the outcome of the trial would have been different if the
trial court had given an instruction like that proposed in Howard, counsel said, “I can’t use the word
probable, but . . . let me put it this way, I just kind of think that maybe it would have been different.”

        The petitioner testified that he had several prior convictions for fraudulent use of a credit
card, second degree burglary, and attempted aggravated burglary. Additionally, he acknowledged
that he “was convicted of a B-felony drug case that was reduced to criminal attempt felony.” The
petitioner admitted that he had occasionally used aliases.

         The petitioner testified that trial counsel provided him with discovery materials. However,
he asserted that trial counsel visited him only once while he was in jail and then talked with him on
a court date. The petitioner said that he asked trial counsel to interview Jaqueline Jackson. He
maintained that Jackson would have testified that the petitioner did not own a pistol. The petitioner
also wanted trial counsel to call his sister, Margaret Moore, to testify that the petitioner was working
at the time of the offense.

        The petitioner maintained that he was at the scene of the crime to sell some stolen clothes
that he had purchased at the park; he was not there to rob the victim. The petitioner said the
testimonies of the victim’s grandson and the co-defendant that the petitioner had the gun were not
true. The petitioner conceded that trial counsel “did basically what [the petitioner] and he talked
about doing.” The petitioner alleged that trial counsel could have done a better job representing the
petitioner.

        At the conclusion of the post-conviction hearing, the post-conviction court found that the
petitioner had failed to establish that his trial counsel was ineffective. The court specifically found
that the petitioner was not credible and that trial counsel was credible. The post-conviction court
stated that trial counsel had adequately prepared for trial. The court noted that at the time of the
petitioner’s trial, the trial court was obligated to fully and properly instruct the jury on the material
issues regardless of whether counsel requested the instruction. The post-conviction court found that


        2
            The natural and probable consequences rule

                  extends the scope of criminal liability to the target crime intended by a defendant
                  as well as to other crimes committed by a confederate that were the natural and
                  probable consequences of the commission of the original crime.

Howard, 30 S.W .3d at 276.



                                                         -4-
the trial court had erred in not giving an instruction on the natural and probable consequences rule.
Nevertheless, the post-conviction court determined that the error was harmless. The post-conviction
court stated that the defendant in Howard “did not have a gun, was not present when the shooting
took place, denied that he ever had a gun, denied that he was ever involved in the shooting.” The
post-conviction court noted that Howard concerned a defendant who was convicted of premeditated
first degree murder under a theory of criminal responsibility. The post-conviction court found the
instant case distinguishable from Howard in that the petitioner was convicted of first degree felony
murder in the perpetration of a robbery. The court stated that in the instant case “the facts that were
accredited at trial by the jury were that this [petitioner] entered into this victim’s house, that he was
actively involved in the robbery . . . that the . . . grandson of the victim . . . saw this [petitioner] with
a gun, heard the [petitioner] make threats to the victim.” The court found the instant case analogous
to State v. Richmond, 90 S.W.3d 648, 657 (Tenn. 2002), wherein our supreme court found harmless
error in a trial court’s failure to give a natural and probable consequences instruction.

        The court observed that the jury obviously accredited testimony that the petitioner was an
active participant in the murder, to the point of brandishing a gun during the offense. Therefore, the
court determined that there was not a reasonable probability that the result of the trial would have
been different had the trial court instructed the jury on the natural and probable consequences rule.
On appeal, the petitioner argues that the post-conviction court erred in failing to find that counsel
was ineffective by failing to request a jury instruction on the natural and probable consequences rule
and by failing to raise on direct appeal the trial court’s failure to give such an instruction.

                                               II. Analysis

         To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of


                                                    -5-
counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance,
the petitioner must show that counsel’s performance was below “the range of competence demanded
of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish
prejudice, the petitioner must show that “there is 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.” Strickland, 466 U.S.
at 694. Moreover,

                          [b]ecause a petitioner must establish both prongs of the test,
                  a failure to prove either deficiency or prejudice provides a sufficient
                  basis to deny relief on the ineffective assistance claim. Indeed, a
                  court need not address the components in any particular order or even
                  address both if the [petitioner] makes an insufficient showing of one
                  component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

        Initially, we note that the record before us reflects that the petitioner questioned trial counsel
using a copy of the jury instructions and that the post-conviction court reviewed the jury instructions;
however, the petitioner failed to include the jury instructions in the record for our review.3 The
petitioner carries the burden of ensuring that the record on appeal conveys a fair, accurate, and
complete account of what has transpired with respect to those issues that are the bases of appeal.
Tenn. R. App. P. 24(b); see also Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).
Generally, “[i]n the absence of an adequate record on appeal, this court must presume that the trial
court’s rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn.
Crim. App. 1991). Nevertheless, we will address the petitioner’s concerns.

        At the time of the petitioner’s trial, our criminal code provided that “[a] person was
criminally responsible as a party to an offense if the offense is committed by the person’s own
conduct, by the conduct of another for which the person is criminally responsible, or by both.” Tenn.
Code Ann. § 39-11-401(a) (1997). Tennessee Code Annotated section 39-11-402(2) (1997)
provided that a person is criminally responsible for the actions of another when, “[a]cting with intent
to promote or assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.”
Specifically, when a person is aware of the intentions of his co-defendant and proceeds to aid or
attempt to aid in the endeavor, that person is responsible for all natural and probable consequences
of his co-defendant’s actions during the commission of the crime. See State v. Carson, 950 S.W.2d
951, 956 (Tenn. 1997).


         3
             A portion of the jury instruction was included in the record; however, the portion concerned the question
that the jury asked the trial court.

                                                         -6-
        In State v. Richmond, 90 S.W.3d 648 (Tenn. 2002), our supreme court reviewed the history
of the natural and probable consequences rule which we will briefly summarize as it relates to the
instant case. Notably,

               [t]he natural and probable consequences rule arose as a common law
               component of criminal responsibility and extends criminal liability to
               the crime intended by a defendant, and collateral crimes committed
               by a co-defendant, that were the natural and probable consequences
               of the target crime. See State v. Carson, 950 S.W.2d 951 (Tenn.
               1997). We have noted on several occasions that “criminal
               responsibility is not a separate, distinct crime. It is solely a theory by
               which the State may prove the defendant’s guilt of the alleged offense
               . . . based upon the conduct of another person.” State v. Lemacks,
               996 S.W.2d 166, 170 (Tenn. 1999).

Richmond, 90 S.W.3d at 654. In the Criminal Sentencing Reform Act of 1989, the legislature
codified the common law doctrine of criminal responsibility, and “the legislature clearly intended
that the natural and probable consequences doctrine survive codification.” Id. at 656 (citing Carson,
950 S.W.2d at 955).

          State v. Howard, 30 S.W.3d 271 (Tenn. 2000), which was released well-after the petitioner’s
trial, reiterated “that the purpose of the natural and probable consequences rule is to hold aiders and
abettors ‘responsible for the criminal harms they have naturally, probably and foreseeably put into
motion.’” Richmond, 90 S.W.3d at 656 (quoting Howard, 30 S.W.3d at 276). The court in
Richmond explained that Howard clearly “stands for the proposition that the natural and probable
consequences rule is ‘an essential element that the State must prove beyond a reasonable doubt’
when seeking a conviction based on [a] theory of criminal responsibility.” Richmond, 90 S.W.3d
at 657. The court further observed, “More importantly, we put forth the test that courts are to apply
when liability is based upon the natural and probable consequences rule.” Richmond, 90 S.W.3d
at 656. The court explained that

               the State must prove beyond a reasonable doubt and the jury must
               find: (1) “the elements of the crime or crimes that accompanied the
               target crime; (2) the defendant was criminally responsible pursuant to
               Tennessee Code Annotated section 39-11-402; and, (3) that the other
               crimes that were committed were the natural and probable
               consequences of the target crime.”

Id. (quoting Howard, 30 S.W.3d at 276).

        After Howard, this court examined whether a trial court was required to instruct the jury on
the natural and probable consequences rule in cases of felony murder. See State v. Winters, 137
S.W.3d 641 (Tenn. Crim. App. 2003). In Winters, this court explained that “the felony murder


                                                  -7-
statute . . . does not require that a homicide committed during the course of one of the enumerated
felonies be foreseeable.” 137 S.W.3d at 659. In other words, “‘[w]hen one enters into a scheme
with another to commit one of the felonies enumerated in the felony murder statutes, and death
ensues, both defendants are responsible for the death regardless of who actually committed the
murder and whether the killing was specifically contemplated by the other.’” Id. (quoting State v.
Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000)). Based upon Winters, the petitioner clearly
was not entitled to an instruction on the natural and probable consequences rule in relation to the
felony murder charge. Id. However, the natural and probable consequences rule is applicable in
cases where the State seeks a conviction for first-degree premeditated murder based upon a theory
of criminal responsibility. See Howard, 30 S.W.3d at 273. We again note that the petitioner was
not convicted of first-degree premeditated murder; regardless, the natural and probable consequences
rule is also applicable in second degree murder cases. See State v. Michelle Tipton, No. E2004-
01278-CCA-R3-CD, 2005 WL 2008178, at *4 (Tenn. Crim. App. at Knoxville, Aug. 22, 2005).

         The post-conviction court accurately noted that regardless of a request by counsel, the trial
court was obligated to instruct the jury regarding the law applicable to the facts of the case. See
State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). The post-conviction court found that the trial
court instructed the jury according to the Tennessee Pattern Jury Instructions in place at that time but
that the instructions did not include the natural and probable consequences rule. The post-conviction
court found that the failure to give such instruction was harmless error.

        Given the timing of the Howard opinion in relation to the petitioner’s trial and direct appeal,
we cannot conclude that counsel deficient for failing to request a natural and probable consequences
jury instruction regarding the charged offense of first degree murder. Obviously, as the Howard
opinion was released during the pendency of the petitioner’s first tier appellate review, counsel could
have submitted the Howard opinion to this court as supplemental authority. Counsel admittedly did
not do so. However, counsel raised the issue of a natural and probable consequences instruction in
his Rule 11 application for permission to appeal. We conclude that, under the facts of this case,
counsel did not act “‘outside the wide range of professionally competent assistance.’” Torrey Lyonel
Frazier v. State, No. E2007-02518-CCA-R3-PC, 2009 WL 774482, at *5 (Tenn. Crim. App. at
Knoxville, Mar. 25, 2009) (quoting Strickland, 466 U.S. at 690), perm. to appeal granted, (Tenn.,
Aug. 17, 2009).

         Regardless, we agree with the post-conviction court that the failure “did not, beyond a
reasonable doubt, affect the outcome of the trial” and that the petitioner was therefore not prejudiced
by trial counsel’s failure to raise the issue of a natural and probable cause instruction at trial or on
direct appeal. Richmond, 90 S.W.3d at 658; see also Derick Bailey v. State, No. M2004-02434-
CCA-R3-PC, 2005 WL 2205901, at *5 (Tenn. Crim. App. at Nashville, Sept. 7, 2005). Therefore,
the petitioner failed to prove that his trial counsel was ineffective.




                                                  -8-
                                III. Conclusion

The judgment of the post-conviction court is affirmed.


                                             ___________________________________
                                             NORMA McGEE OGLE, JUDGE




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