        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE            FILED
                      OCTOBER SESSION, 1998         January 28, 1999

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
AARON JERMAINE              )   C.C.A. NO. 03C01-9802-CR-00046
WALKER,                     )
                            )
      Appe llant,           )
                            )
                            )   HAMILTON COUNTY
VS.                         )
                            )   HON . STEP HEN M. BE VIL
STATE OF TENNESSEE,         )   JUDGE
                            )
      Appellee.             )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF HAMILTON COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

STE PHE N M. G OLD STE IN       JOHN KNOX WALKUP
314 Vine Street                 Attorney General and Reporter
Chattanooga, TN 37403
                                MICH AEL J . FAHE Y, II
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                BILL COX
                                District Attorney General

                                BATES BRYAN, JR.
                                Assistant District Attorney General
                                Courts Building
                                600 Market Street
                                Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Aaron Jermaine Walker, appeals the denial of his petition

for post-conviction relief by the Criminal C ourt for Ham ilton County. Defendant

asserts that he su ffered ineffe ctive assista nce of co unsel at trial and that this

alleged in effective as sistance prejudice d him in s everal res pects.



       Defendant was indic ted by the Hamilton County Grand Jury for

premeditated first degree murder and felony murder (in perpetration of robb ery)

in connection with the shoo ting de ath of th e victim . Acco rding to Defe ndan t’s

testimony at his trial, he and severed co-defendant Chandler Fitch planned to find

a person addicted to crack cocaine, offer to sell the person drugs, and then take

the tendered money and flee. Defendant and Fitch un dertoo k to exe cute th eir

plan, and De fenda nt sho t the victim in the p roces s, cau sing h is dea th. A jury

convicted Defendant of felony murder and sentenced him to life imprisonment

with the possibility of parole. H is conviction and sentence were affirmed on

appea l. State v. Walker, 893 S.W .2d 429 (Te nn. 1995).



       In this ap peal o f the trial court’s denial of his post-conviction petition,

Defendant alleges four instances of ineffective assistance by his trial counsel: (1)

failure to deliver effective openin g and c losing sta temen ts; (2) failure to m ove to

suppress oral statem ents by D efendant; (3) fa ilure to “con fer freque ntly” with

Defen dant; and (4) failure to request a jury charge on voluntary manslaughter, or

failure to object to the trial court’s decision not to ch arge voluntary m anslaughte r.




                                          -2-
W e find no merit in Defendant’s contentions, and we affirm the trial court’s denial

of relief.



       To be entitled to pos t-conv iction re lief on th e bas is of ineffective assistance

of counsel, Defendant must show (1) that his trial counsel’s representation was

“deficient,” and (2) that “the deficient performance prejudiced th e defen se.”

Strickland v. Wash ington, 466 U.S. 668, 687 (1984). Under the first prong,

coun sel’s performance is not deficient when “the advice given, or the services

rendered by the attorney, are within the range of competence demanded of

attorneys in criminal cases .” Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5).

The second prong requires a petitioner to show a reasonable probability that the

result of the trial would have been different but for the deficient representation.

Strickland, 466 U.S. at 69 4. “A reasonable probability is a probability sufficient

to underm ine confidence in the outcom e.” Id.



       If afforde d a po st-con viction evidentiary hearin g by the trial c ourt, a

petitioner must do more than merely present evidence tending to show

incompetent represe ntation an d prejud ice; the petitioner must prove factual

allegations by clear an d convin cing evide nce. Te nn. Co de Ann . § 40-30-210 (f).

When an evidentiary he aring is he ld, findings o f fact mad e by that co urt are

conclusive and binding on this Court unless the evidence preponderates against

them. Coope r v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. Sta te,

789 S.W .2d 898 , 899 (T enn. 19 90)).



       Furtherm ore, with re spect to decisions of tactic or strategy, the Supreme

Court stated that “[a] fa ir assessment of attorney performance requires that every

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effort be mad e to eliminate the d istorting effect of hindsight, to re constr uct the

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

coun sel’s perspective at the time.” Strickland, 466 U.S. at 688. The courts of this

state also h ave lon g “reco gnize d that it is not ou r functio n to ‘second-guess’

tactical matters and strategical choices perta ining to defense matters or m easure

a defense attorney’s representation by ‘20-20 hindsight’ when deciding the

effectiveness of trial counsel.” Cooper, 849 S.W.2d at 746 (quoting Hellard v.

State, 629 S.W .2d 4, 9 (T enn. 19 82)).



                    I. OPENING AND CLOSING STATEMENTS

       The record reflects that the following constitutes the entirety of the opening

statement delivered by Defe ndan t’s trial co unse l: “I’ll be brief. You said that you

will listen to this cas e in full an d we w ould just ask that you wa it till you’ve heard

all the e videnc e in this case to make your decision.” Defendant complains that

this cursory opening statement and trial counsel’s allegedly deficient closing

statement deprived him of th e effective assistance of counsel because a

competent attorney would have discussed that the evidence supported lesser

included offenses , that the State maintained the burden of proof, and that the

State must prove all elements of the offenses. In addition, Defendant asserts that

trial couns el should have ad vised the ju ry about the Defendant’s theory of the

case and specific evidence for which jurors should watch. Finally, Defendant

complains that his trial cou nsel fa iled to “guide the jury” by distinguishing the

eleme nts of lesser included offenses, and he states that these errors prejudiced

Defen dant’s ab ility to receive a fa ir trial.




                                             -4-
       Following an evidentiary hearing on the post-con viction p etition in this

case, the trial court found, “based on the evidence, the facts known to [trial

couns el], and the trial strategy, that [trial couns el’s] argum ent to the jury did not

amount to ineffective a ssistanc e of coun sel.” To support his conclusion, the post-

conviction judge cited trial counsel’s post-conviction hearing testimony, in which

the attorney stated that “his plan was to keep the proof minimal, and try to show

the jury that the killing was an accident and not an intentional killing, thereby

hoping to reduce the charge to less than first degree murder.” In addition, the

judge “recognize[d] tha t counsel’s argu ments are not as persuasive as the proof

that’s presented at the trial.”



       This Court finds no reason to disregard the po st-con viction tria l court’s

conclusion on this issu e. W aiver of opening or closing argument altogether by

trial counsel may be considered an acceptable tactic, whether or not ultim ately

successful or even wise when vie wed in h indsight. See, e.g., Bacik v. Eng le, 706

F.2d 169, 171 (6th Cir. 1983) (waiver o f opening statem ent not ineffective

assistance of couns el); Cone v. State, 747 S.W.2d 353, 357 (Tenn. Crim. App.

1987) (waiver of closing statement in penalty phase not ineffective assistance

when used a s strategy to preven t State from makin g final closing statem ent);

State v. Menn, 668 S.W .2d 671 , 673 (T enn. C rim. App . 1984) (s ame); State v.

Casson Marcel McCoy, No. 01C01-9603-CC-00109, 1997 WL 137422, at *3

(Tenn. Crim. App., Nashville, Mar. 27, 1997) (waiver of opening statement not

ineffective assistance of couns el); State v. Myer Pettyjohn, No. 01C01-9006-CC-

00139, 1992 WL 50973, at *4 (Tenn. Crim. App., Nashville, Mar. 19, 1992)

(adoption of co-defendant’s closing statement not ineffective assistance when




                                          -5-
used as strategy to save clos ing for sen tencing p hase a nd ma intain cred ibility

with jury), perm. to appeal denied (Tenn . 1992).



       Similarly, this Cou rt has ap proved th e waiver o f a closing statement even

when trial counsel presented no tactical or strategic explanation, where the

record revealed such strong evidence against the defendant that no prejudice

existed. See Jessie S . Tidwell v. S tate, No. 01C01-9307-CR-00201, 1994 WL

548708, at *10-*11 (Tenn. Crim. App., Nashville, Oct. 6, 1994), aff’d in part, re v’d

in part, Tidwe ll v. State, 922 S.W.2d 497 (Tenn. 1996). The Tennessee Supreme

Court, though reversing in part on other grounds, found that the failure to give a

closing statement did not constitute ineffective assistance of counsel in that case.

922 S.W .2d at 498 n.1.



       Based upon trial counsel’s testimony at Defendant’s post-conviction

hearing—that he focused on persuading the jury that Defendant killed the victim

by accident—and the finding made by the post-conviction judge that Defendant

did not receive ineffective assistance of counsel, we conclude that trial cou nsel’s

scant opening statement and allegedly inadequate closing statement did not

amount to deficient perform ance as co nceived by Strickland v. Washington and

Baxter v. Rose. Further, even if trial counsel’s statements had fallen below the

appropriate sta ndard of care, we conclude that Defendant would have suffered

no prejudice due to the strength of the eviden ce ag ainst h im, inc luding his own

dam ning te stimo ny at tria l.




                                         -6-
                  II. MOTION TO SUPPRESS CONFESSIONS

       Defendant also claims that his trial counsel was ineffective to his prejudice

by failing to move the trial court for suppression of his statements to police. At

the post-conviction hearing, D efend ant pre sente d an a ttorney exper ience d in

criminal trial matters, who testified that failing to file a motion to suppress did not

“live up to a rea sonab le standa rd of repre sentation .” In supp ort of this allegation,

Defendant argue s that “th ere wa s an in dicatio n in the original trial that an offer of

leniency may have been used by the police. Also, the Petitioner was only 18 or

19 years old a t the time of the con fession.”



       In his first statement to police, Defendant described a scene in which the

victim asked him if he w anted to buy drug s. Accor ding to this statement, when

Defendant replied “no,” the victim reache d into Defend ant’s pocket for m oney,

and Defendant noticed a gun in the vic tim’s other hand. As Defendant grabbed

the victim’s hand which held the gun, it fired, striking the victim. Later, Defendant

gave another version of events, which was virtu ally identical to his testimony at

trial. He stated that he, rather than the victim, possessed the gun; and he

recoun ted the pr econc eived plan to find a cra ck coca ine add ict to rob.



       At the evidentiary hearing on this matter, Defendant’s trial counsel testified

exten sively and emphatically that (1) he believed no potentially meritorious

grounds for filing a motion to suppress existed, and (2) he believed that filing a

motion lacking meritorious potential would be a violation of his ethical obligations

as an attorney and officer of the courts. We agree. Furthermore, the record

reflects that trial counsel utilized the statements at trial in an attempt to show

Defe ndan t’s remorse and intention to do the rig ht thing. Counsel hoped to show

                                           -7-
that after having given a false statement, Defendant felt com pelled to deliver a

truthful account of events—the second statement, during which Defendant

emotionally expressed a great deal of remorse.



       W e conclude that Defendant has failed to bear his burden to show deficient

representation by making only a generalized reference that “an offer of leniency

may have been used by the police” and that “the Petitioner was only 18 or 19

years old at the time of the confession.” In addition, Defe ndan t has c once ded h is

inability to show prejudice by stating, “By itself, the fa ilure to file a Mo tion to

Suppress, may not have changed the outcome of the case, but its cumulative

effect would be; and thereby prejudicing the Petitioner for a fair trial.” 1 This issue

lacks m erit.



                   III. ATTORNEY-CLIENT COMMUNICATION

       Defendant contends th at he received ineffective assistance of counsel

beca use h is trial co unse l confe rred w ith him on only two occasions prior to trial

and because they had only one discussion regarding whether he wo uld tes tify in

his defen se.



       At the post-conviction hearing, Defendant’s trial counsel testified that he

communicated adeq uately w ith Def enda nt and that he strong ly advised

Defendant to exercise his privilege not to testify at trial. Defendant disregarded

this advice and testified, painting a vivid scene of a “classic” felony murder. Not

only do we find no deficie nt perform ance, w e find no p rejudice: A s the Sta te



       1
          We later consider the argument for a new trial based upon the cumulative effect of
several instances of ineffective representation.

                                            -8-
indicates , “[Defend ant] has shown no prejudice, because he can offer no basis

on how his defen se could ha ve been improved and his verdict affected by m ore

comm unication betwe en he and [trial counsel].”



              IV. VOLUNTARY MANSLAUGHTER INSTRUCTION

      For his final issue, Defen dant argue s that he suffere d ineffective assistance

of counsel because his attorney (1) failed to request a jury instruction on

voluntary manslaughter, or (2) failed to o bject whe n the trial cou rt declined to

include a voluntary m anslau ghter instru ction in the jury charg e.



      This C ourt rece ntly anno unced ,

      before instructing a jury on a less er offense, the trial court must
      determine wheth er the e videnc e, whe n viewe d in the light most
      favora ble to the defendant’s theory of the case, would jus tify a jury
      verdict in accord with the de fendan t’s theory, an d would permit a
      rational trier of fact to find the defendant guilty of the lesser offense
      and no t guilty of the gre ater offen se.

State v. Thomas Jerome Elder, No. 03C01-9702-CR-00053, 1998 WL 191445,

at *4 (Te nn. Crim . App., Kn oxville, Apr. 23 , 1998). F urtherm ore,

      absent such a standard regarding the quantum of proof neces sary
      to trigger an instruction on a lesser offense, the trial judge who
      charges a lesser offense based upon less than sufficient evidence
      would be faced with the absurd neces sity, predica ted upo n its own
      invited error, of entering a judgment of acquittal following the jury’s
      guilty verdict on the lesser offense.

Id. at *5. Therefore , the inquiry a trial court must make to determine when it must

charge a lesser included or lesser grade offense is mu ch the sam e as the inquiry

this Court makes to determine whether the evidenc e is sufficien t to suppo rt a

conviction that has b een ap pealed .




                                           -9-
      A conviction for voluntary manslaughter requires the “intentional or knowing

killing of another in a state of passion produced by adequate provocation

sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code

Ann. § 39-13 -211. In Elder, this Court found that no evidence existed from which

the jury could possibly have returned a verdict of attempted voluntary

man slaug hter wh en (1) th e defe ndan t threate ned to kill the vict im and attacked

him from behind, and (2) the only evidence of provocation presented by th e

defendant was th at he a nd the victim e ngag ed in a n argu men t four an d one -half

hours p rior to the killing. Jerome Thomas Elder, 1998 W L 1914 45, at *6.



      Likewise, in this case, the evidence presented at trial was not sufficient to

perm it a rational jury to return a verdict for the lesser offense and not the greater

offense. To support the need for an instruction for voluntary m anslaughte r,

Defendant can p oint to o nly two id entica l references to the record in which he

stated that the victim “came towards” him prior to the shooting. Accord ing to

Defendant hims elf, he h it the victim with the intention to knock him unconscious

and take his mo ney. O nly then did the victim come toward Defendant, who was

armed and accompanied by his co-defendant. The co-defendant attempted to

“grab” the victim, and Defendant began to pull his gun from his coat pocket. As

he did so, the gun fired, striking the victim . Even in th e light mo st favorab le to

Defen dant, the evide nce wa s not sufficient to warrant a jury instruction on

voluntary m anslau ghter.



      Furthermore, we also conclude that even if Defendant’s trial counsel had

been deficient in his representation on this matter, Defendant suffered no

prejudice. The jury in this case returned a verdict convicting the Defendant of

                                        -10-
murder in the first degree as the result of a reckless killing in the perpetration of

a robbery, not premeditated first degree murder. We are unconvinced that the

Defendant could have b een in any way prejudiced by the failure of the trial judge

to charge the jury c oncerning the elements o f voluntary man slaughter.



       W e therefore conclude that the Defendat has established neither that

coun sel’s representation was deficient nor that Defendant suffered prejudice

concerning the trial judge’s failure to charg e voluntary ma nslaughter.



                             V. CUMULATIVE ERROR

       Defendant argues that althou gh individu al instanc es of ineffe ctive

assistance of trial counsel may not have prejudiced him in violatio n of his

constitutional rights to due process and a fair trial, the cumulative effect of several

instances of ineffe ctive as sistan ce cre ated p rejudice of constitutional proportions.

W e have determined that Defendant suffered no ineffective assistance of

couns el; therefore , there can be no cu mulative effect.



       We affirm the tria l court’s de nial of pos t-conviction relief.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:




                                          -11-
___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                             -12-
