            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1998


                                                             FILED
FRANKLIN E. HARRIS, JR.,    )                           February 18, 1998
                            )    No. 02C01-9701-CR-00003
      Appellant             )                          Cecil Crowson, Jr.
                            )    SHELBY COUNTY          Appellate C ourt Clerk
vs.                         )
                            )    Hon. BERNIE WEINMAN, Judge
STATE OF TENNESSEE,         )
                            )    (Post-Conviction)
      Appellee              )



For the Appellant:               For the Appellee:

Walker Gwinn                     Charles W. Burson
Asst. Public Defender            Attorney General and Reporter
201 Poplar - Suite 2-01
Memphis, TN 38103                Deborah A. Tullis
                                 Assistant Attorney General
A. C. Wharton                    Criminal Justice Division
District Public Defender         450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 William L. Gibbons
                                 District Attorney General

                                 P. T. Hoover
                                 Asst. District Attorney General
                                 Criminal Justice Complex
                                 Suite 301, 201 Poplar Street
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                        OPINION




       The appellant, Franklin E. Harris, Jr., appeals the denial of his petition for

post-conviction relief by the Shelby County Criminal Court. He is currently serving

an effective sentence of life plus twenty-five years in the Department of Correction

for his 1993 convictions for first degree murder and attempted first degree murder.

His convictions were affirmed on direct appeal to this court. See State v. Harris,

No. 02C01-9308-CR-00172 (Tenn. Crim. App. at Jackson, May 25, 1994), perm. to

appeal denied, (Tenn. Oct. 31, 1994). In November 1995, the appellant filed the

instant petition for post-conviction relief. After a hearing on the merits, the trial court

denied the post-conviction petition. In this appeal as of right, the appellant

challenges the trial court’s finding that trial counsel was effective. Additionally, he

contends that the reasonable doubt instruction containing the terms “moral certainty”

impermissibly lowered the “beyond a reasonable doubt” standard.



       After a review of the issues, we affirm the decision of the trial court pursuant

to Rule 20, Tenn. Ct. Crim. App. R.



       In support of his ineffective assistance of counsel claim, the appellant alleges

that trial counsel (1) failed to object to the reasonable doubt instruction given by the

court, (2) failed to request a jury instruction on corroboration of accomplice

testimony, and (3) prejudiced the appellant by announcing during opening

statements that the appellant would testify when in fact he did not testify. The trial

court correctly determined that the appellant’s claim involving counsel’s failure to

request an instruction on accomplice testimony had been previously determined on

direct appeal. Tenn. Code Ann. § 40-30-206(g) (1995 Supp.). See Harris, No.

02C01-9308-CR-00172. The fact that this issue is now couched in terms of

ineffective assistance of counsel is of no consequence. See Overton v. State, 874


                                           2
S.W.2d 6, 12 (Tenn. 1994). An issue that has been previously determined on direct

appeal cannot support a petition for post-conviction relief and is, therefore,

excluded. See State v. Denton, 938 S.W.2d 373, 377 (Tenn. 1996); House v. State,

911 S.W.2d 705, 710 (Tenn. 1995), cert. denied, --U.S.--, 116 S.Ct. 1685 (1996).

Additionally, the trial court found that trial counsel’s statement regarding the

appellant’s intent to testify amounted to trial strategy and did not prejudice the

appellant.1 See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, it is well

settled in this state that the challenged instruction on reasonable doubt containing

the language “moral certainty” passes constitutional muster. 2 State v. Nichols, 877

S.W.2d 722, 734 (Tenn. 1994); Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn.

Crim. App. 1994).



         In a post-conviction proceeding filed after May 10, 1995, the appellant has

the burden of establishing his claims by clear and convincing evidence. Tenn. Code

Ann. § 40-30-210(f) (1995 Supp.). Moreover, the findings of fact of a trial court have

the weight of a jury verdict and are conclusive on appeal unless the evidence

preponderates against its judgment. Davis v. State, 912 S.W.2d 689, 697 (Tenn.

1995). In the present case, the appellant has failed to carry his burden of

establishing his claims. Moreover, we cannot conclude that the evidence

preponderates against the trial court’s findings of fact. As a result, we find no error

of law requiring reversal.



             The trial court’s judgment is affirmed pursuant to Rule 20, Tenn. Ct. Crim.

App. R.




         1
           Trial counsel testified that he and the appellant had initially agreed that the appellant
wou ld tes tify at tria l beca use the S tate w as in p oss ess ion of state me nts m ade by the appe llant in
which he adm itted to the sh ootings. H oweve r, the State c hose n ot to introdu ce the s tatem ents
during its case-in-chief. Counsel and the appellant reexamined their previous position and agreed
that the appellant would not testify to prevent impeachment by these statements.

         2
        The fact that the appellant has couched this issue both in terms of ineffective assistance
of counsel and as a substantive claim is of no consequence.

                                                      3
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




____________________________________
JOE B. JONES, PRESIDING JUDGE



____________________________________
JOE G. RILEY, Judge




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