         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 13, 2005

                  TIMOTHY HARRIS v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                         No. P-13185     John P. Colton, Jr., Judge



                  No. W2004-02891-CCA-R3-PC - Filed December 16, 2005


The petitioner, Timothy Harris, appeals the denial of his petition for post-conviction relief. The
single issue presented for review is whether the petitioner received the effective assistance of counsel
at trial. The judgment is affirmed.

                 Tenn. R. App. P. 3; Judgment of the Trial Court is Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

Dewun R. Settle, Memphis, Tennessee (at trial); and Timothy D. Harris, Tiptonville, Tennessee (on
appeal), pro se.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and
Steve Crossnoe, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        In 1993, the petitioner was convicted of felony murder, especially aggravated robbery, and
aggravated burglary. The jury returned a sentence of death for the felony murder. The trial court
imposed consecutive sentences of twenty-five years for the especially aggravated robbery and six
years for the aggravated burglary. On direct appeal, this court affirmed the conviction but modified
the sentence of death for felony murder to a term of life imprisonment. State v. Timothy D. Harris,
No. 02C01-9211-CR-00258 (Tenn. Crim. App., at Jackson, Apr. 13, 1994). Our supreme court,
however, reversed this court's modification of the death sentence and remanded the issue to the trial
court for resentencing. State v. Harris, 919 S.W.2d 323 (Tenn. 1996). The petitioner ultimately
received a life sentence for the felony murder.

       The facts are set out in detail in the opinion of this court on direct appeal. In summary, the
victim picked up his girlfriend on the evening of May 29, 1990, and drove her back to his residence.
As she waited in the house, the victim carried a fan and some clothes to his car. Five men
approached the victim, one of whom removed his shirt and displayed a "long gun." The victim
attempted to escape into his vehicle but was shot multiple times. The victim's girlfriend, who saw
the shooting from inside the residence, hid in the bathroom of a back bedroom. She then heard
approximately eight more shots from multiple guns. While hiding, she observed three of the men
enter the back bedroom of the house and look through drawers. An officer described the house as
having been ransacked. A few days later, the victim's girlfriend identified the petitioner from a
photographic array as one of the men at the scene of the shooting.

        On September 20, 1996, the petitioner filed a pro se petition for post-conviction relief
alleging, among other things, that he was denied the effective assistance of counsel at trial. On
October 11, 1999, the petitioner amended the petition to allege that his trial counsel was ineffective
for having failed to (1) inform the petitioner of the law concerning the first degree felony murder
charge, (2) properly advise the petitioner not to accept the state's plea, (3) prepare a defense, (4)
request a continuance of the trial in order to prepare a defense, and (5) adequately prepare for trial.
He also alleged that his counsel failed to provide effective assistance on direct appeal.

        At the evidentiary hearing, the petitioner, who was represented at trial and on appeal by
Attorneys Harry Scruggs and Stephen P. Spracher, testified that he was originally charged with
felony murder, especially aggravated robbery, and aggravated burglary. He complained that although
Attorney Scruggs prepared and filed pretrial motions, he failed to appear for hearings on those
motions. He alleged that Attorney Scruggs was actually held in contempt of court for having missed
a pre-trial motion hearing. The petitioner contended that his counsel did not inform him of the law
involved in the case, never discussed a trial strategy, and never explained to him that he was facing
the death penalty. He asserted that Attorney Scruggs advised him against accepting a plea bargain
that would have resulted in a sentence of thirty-five years and that his attorneys otherwise failed to
investigate the case, failed to interview the state's main witness, and failed to investigate or present
mitigating factors that might have prevented the petitioner from receiving the death sentence. The
petitioner also criticized his attorneys for failing to object or call witnesses during the guilt phase of
the trial, contending that "[w]e didn't put on a defense." He complained that only one defense
witness was called to testify during the sentencing phase of the trial, explaining that he himself did
not provide the names of any witnesses who could have testified on his behalf because of his total
reliance on his attorneys. The petitioner also contended that his attorneys failed to request or submit
jury instructions regarding facilitation of felony murder as a lesser-included offense of felony
murder.

         Attorney Scruggs died before the evidentiary hearing on the petition. On the second and final
day of the hearing, which was held six months after the petitioner testified, Attorney Spracher
testified that in 1991, after Attorney Scruggs asked for his assistance in the case, the trial court
appointed him as co-counsel. He recalled that the possibility of the death sentence was "constantly
on our minds" and that the petitioner was well aware of that before their first meeting. He explained
that the thirty-five year plea bargain offered to the petitioner was contingent upon each of his co-
defendants accepting the plea, that some of the others chose not to accept the offer, and that, in
consequence, the offer was unavailable to the petitioner. Attorney Spracher refuted the allegation


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that he and his co-counsel had failed to prepare a defense and pointed out that they had filed
extensive pre-trial motions in the case. He described the defense theory as factually-based: the
petitioner contended that he was not part of any conspiracy that resulted in the victim's death because
he had never intended for the shooting to occur and had abandoned the entire enterprise when his
co-defendants began shooting at the victim.

        Attorney Spracher acknowledged that because of a last-minute plea bargain reached by one
of the co-defendants, he and his co-counsel were "surprised" when the case against the petitioner was
elevated to first on the docket for trial. Attorney Spracher nevertheless contended that he and his co-
counsel were ready because the trial court had instructed them to be prepared in case time permitted
them to go forward on that date. He testified that he did not know the number of times he met with
the petitioner prior to trial but insisted that he met with him enough so that he "was comfortable with
going to trial at least understanding that [the petitioner] knew . . . what our plan was and where we
were going with it, and that we had an idea what each person was going to say." Trial counsel stated
that because the petitioner had decided not to testify and because there were no witnesses that would
support the defense theory, they had to rely upon the cross-examination of the state's witnesses as
the means of presenting the defense. He testified that the petitioner did not provide the names of any
witnesses that could have testified on his behalf. He contended that he prepared a portion of the brief
for the appeal and was successful to the extent that this court overturned the sentence of death and
imposed a sentence of life imprisonment.

        On cross-examination, Attorney Spracher confirmed that no investigator or mitigating
specialist worked on the case because the trial court had denied the request of co-defendants for such
assistance. He explained that counsel for each of the defendants charged in the murder adopted the
motions made by the attorneys for the other defendants. Attorney Spracher admitted that he did not
interview any of the state's witnesses but stated that Attorney Scruggs may have done so prior to his
appointment as co-counsel. He acknowledged that he did not recall what jury instructions were
given or whether he and his co-counsel submitted any proposed instructions.

         In 2004, some eight years after the filing of the original petition, the post-conviction court
entered an order denying relief. The court specifically accredited Attorney Spracher's testimony that
the petitioner and his counsel had discussed the death penalty on more than one occasion, including
a discussion on the morning of the trial. The post-conviction court also found that the thirty-five
year plea offer was contingent upon all of the defendants charged in the murder entering pleas of
guilt, something that did not occur. The court determined that when the offer was not accepted by
all defendants, the state withdrew its proposal. As a result of the decision by the petitioner not to
testify at his trial and there being no other witnesses who testified either at trial or the evidentiary
hearing with favorable testimony, the post-conviction court concluded that the defense attorneys
could not have been deficient in their performance by their inability to produce support for the
petitioner's claim that he had abandoned the enterprise. The court ruled that the attorneys did
everything possible to support the theory, including making the argument to the jury. The post-
conviction court further concluded that because trial counsel were prepared, they could not be
ineffective for failing to ask for a continuance. Although the court found that Attorney Scruggs was,


                                                  -3-
in fact, held in contempt for failing to appear for a pre-trial motion hearing, it ruled that the petitioner
was not prejudiced by the action. Finally, the post-conviction court held that the petitioner was not
prejudiced by counsel's failure to include authority to support the issues raised on direct appeal
because this court did not treat the issues as waived and reversed the death sentence. In summary,
the post-conviction court concluded that the petitioner was not denied the effective assistance of
counsel.

        In this appeal, the petitioner asserts that his counsel was ineffective by failing to (1)
adequately prepare for trial, (2) investigate possible defenses, (3) interview potential witnesses, (4)
effectively present proof at trial, (5) meet with the petitioner prior to trial, (6) request a jury
instruction on the lesser included offense, and (7) request a jury instruction on the natural and
probable consequences rule.


         Parenthetically, the petitioner has failed to include appropriate references to the record.
"Issues which are not supported by . . . appropriate references to the record will be treated as waived
in this court." Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7); State v. Hammons,
737 S.W.2d 549, 552 (Tenn. Crim. App. 1987). More importantly, however, the petitioner is not
entitled to relief upon the merits of the issue.

        Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003).
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy
of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). On appeal, the findings of fact made by the post-conviction court are conclusive and will not
be disturbed unless the evidence contained in the record preponderates against them. Brooks v.
State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that
the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the post-conviction court. Bates v. State, 973 S.W.2d 615, 631
(Tenn. Crim. App. 1997).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given was below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to
render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the
trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either
factor, he is not entitled to relief. Our supreme court described the standard of review as follows:

                Because 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


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        ineffective assistance claim. Indeed, a court need not address the components in any
        particular order or even address both if the defendant makes an insufficient showing
        of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court's factual findings, our
review is de novo, and the post-conviction court's conclusions of law are given no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

                                                     I.

        The petitioner makes several claims of ineffective assistance of counsel that may be generally
classified as a claim of failure by trial counsel to adequately prepare for trial. In this appeal,
however, the petitioner makes a strong argument of deficiency in attorney performance without
establishing any indication of prejudice in result. For example, as one basis for his claim of
inadequate trial preparation, the petitioner asserts that his trial counsel failed to adequately
investigate his case. He testified that his attorneys did not interview the state's main witness and
alluded to an audiotape, apparently a tape recording of an interview of the witness, that his attorneys
discovered only after the trial. The petitioner, however, failed to introduce that tape as evidence
during the hearing, failed to explain how the evidence may have been used in his trial, and failed to
suggest how he was prejudiced by the failure to interview the witness or introduce the tape.

         The petitioner also complains that an investigator was never assigned to his case. Attorney
Spracher, who testified that counsel for the co-defendants attempted to have the court appoint
investigators to the case, explained that each of the attorneys representing of defendants charged in
the murder adopted the motions of the others, including the request for funds to employ an
investigator. The trial court denied the motion. Notwithstanding any deficiency in performance by
his trial counsel's failure to insist on a hearing or offer proof of need for expert assistance in this area,
the petitioner failed during the evidentiary hearing to address how he might have benefitted by an
investigator, as is required for any grant of relief.




                                                    -5-
        The petitioner also claims that his counsel inadequately prepared for his sentencing hearing
by failing to interview witnesses or call any witness other than one of his aunts. The petitioner,
however, failed to produce any witness at the evidentiary hearing who might have provided helpful
testimony at trial. It is incumbent upon the petitioner to produce witnesses at the post-conviction
evidentiary hearing in order to establish either deficiency in performance or prejudice in result. Black
v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). This standard precludes speculation as
to the materiality of the testimony or the credibility of the missing witnesses. Id. at 758.

        The petitioner also contends that his lawyers were ineffective by failing to seek a
psychological evaluation. An expert's testimony regarding a defendant's psychological condition will
be admissible only if it tends to prove or disprove that the defendant did not have the capacity to
form the required mental state. See State v. Hall, 958 S.W.2d 679, 689-90 (Tenn. 1997). At trial,
the petitioner made no claim that he lacked the capacity to form the required mental state. Further,
the petitioner made no claim of diminished capacity at his evidentiary hearing and did not offer any
testimony, expert or otherwise, to that effect. He has failed, therefore, to demonstrate that he was
prejudiced by his trial counsel's failure to request a psychological evaluation.

         The petitioner's next complaint is that Attorney Scruggs failed to appear for pre-trial hearings
and "rendered him[self] completely unavailable during critical stages of pre-trial investigation." In
support of the claim, he testified that Attorney Scruggs was on one occasion held in contempt for
his failure to appear at a pre-trial hearing. Attorney Spracher, however, testified that he met with the
petitioner at the jail between October 1991 and March 1992. The post-conviction court accredited
that testimony and concluded that Attorney Scruggs's contemptuous conduct by failing to appear at
a pre-trial hearing had no adverse effect upon the petitioner or the trial of his case. Although the
evidence offered at the evidentiary hearing does not preponderate against that finding, this court does
not condone the conduct of trial counsel in this regard. An attorney's willful failure to appear for a
pre-trial hearing in a capital case is hardly an endorsement for the effectiveness of his performance.

        Finally, the petitioner also asserts that counsel was ineffective by failing to cite authority in
support of the arguments on appeal. That counsel filed an appellate brief in a capital case without
legal citations or significant research is apparently not in dispute. Among the other allegations of
deficiency in performance, that is a troublesome fact. The state, however, established at the
evidentiary hearing that despite the absence of supporting case law, this court fully addressed all of
the petitioner's issues on direct appeal. Moreover, this court overturned the petitioner's sentence of
death. The inescapable implication is that the petitioner was granted relief despite any omissions
on the part of his attorneys. Again, the petitioner has failed to demonstrate how he was prejudiced
by the shortcomings of his counsel on appeal.

                                                    II.

        The petitioner also asserts that his trial counsel was ineffective for failing to object to the jury
instructions, which did not include facilitation of felony murder as a lesser included offense. In



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addition, he asserts that his counsel on direct appeal was ineffective by failing to present the issue
as a ground for relief on direct appeal.

        In order to prevail on his claim that his counsel was ineffective for failing to cite as error the
trial court's failure to provide an instruction on the lesser included offense of facilitation of felony
murder, the petitioner must not only establish that his counsel was deficient by failing to present the
issue but he must also demonstrate that he was prejudiced by the omission. To establish that he was
prejudiced, the petitioner must show that there is a reasonable probability that the result of his direct
appeal would have been different had counsel presented this issue for review. In other words, he
must establish that this court would likely have reversed his conviction in the original appeal and
remanded for a new trial.

        The initial inquiry is whether the trial court erred by failing to instruct the jury on facilitation
of felony murder as a lesser included offense. Whether a given offense should be submitted to the
jury as a lesser included offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424,
427 (Tenn. 2001) (citing State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of review for
mixed questions of law and fact is de novo with no presumption of correctness. Id.; see also State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Because the offense occurred in 1990, this court must
analyze the issue under the law as it existed at that time.1

           In 1993, the trial court was required to instruct on the lesser included offenses when "there
[were] any facts that [were] susceptible of inferring guilt on any lesser included offense or offenses."
State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981) (citations omitted); see also Tenn.
Code Ann. § 40-18-110(a) (1990) ("It is the duty of all judges charging juries in . . . criminal
prosecutions for any felony wherein two (2) or more grades or classes of offense may be included
in the indictment, to charge the jury as to all of the law of each offense included in the indictment
. . . ."). The failure to do so was said to deny "a defendant his constitutional right of trial by a jury."
Wright, 618 S.W.2d at 315. The trial court was not, however, required to instruct on the lesser
included offenses when the record was devoid of evidence to support an inference of guilt of the
lesser offense. State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994); State v. Boyd, 797 S.W.2d
589, 593 (Tenn. 1990), cert. denied, 498 U.S. 1074 (1991); State v. Dulsworth, 781 S.W.2d 277, 287
(Tenn. Crim. App. 1989).

       In Wright v. State, 549 S.W.2d 682 (Tenn. 1977), our supreme court confirmed the test to
determine whether an offense is lesser and included in the greater offense:




         1
            In State v. Burns, 6 S.W .3d 453 (Tenn. 1999), our supreme court revised the standards for the determination
of lesser included offenses. This court, however, has previously declined to apply Burns retroactively to post-conviction
cases where the direct appeal was concluded prior to Burns. See, e.g., James Richard Bishop v. State, No.
E2000-01725-CCA-R3-PC (Tenn. Crim. App., at Knoxville, July 13, 2001), perm. app. denied, (Tenn. 1999).

                                                          -7-
       "The true test of which is a lesser and which is a greater crime is whether the
       elements of the former are completely contained within the latter, so that to prove the
       greater the State must first prove the elements of the lesser."

Id. at 685-86 (quoting Johnson v. State, 397 S.W.2d 170, 174 (1965)).

        At the time of the offense, facilitation of a felony was a relatively new crime, having been
created by the Tennessee Criminal Sentencing Reform Act of 1989, which became effective on
November 1, 1989. See State v. Greg Patterson, No. 03C01-9106-CR-180 (Tenn. Crim. App., at
Knoxville, May 19, 1992). The Sentencing Commission Comments to the facilitation statute
provided that the provision recognized "a lesser degree of criminal responsibility" than that of an
aider and abettor:

       The section states a theory of vicarious responsibility because it applies to a person
       who facilitates criminal conduct of another by knowingly furnishing substantial
       assistance to the perpetrator of a felony, but who lacks the intent to promote or assist
       in, or benefit from, the felony's commission.

              A defendant charged as a party may be found guilty of facilitation as a lesser
       included offense if the defendant's degree of complicity is insufficient to warrant
       conviction as a party. The lesser punishment is appropriate because the offender,
       though facilitating the offense, lacked the intent to promote, assist or benefit from the
       offense.

Tenn. Code Ann. § 39-11-403 (1990 Supp.), Sentencing Commission Comments. This court held
that an instruction on facilitation of a felony as a lesser included offense was not warranted in every
case:

       Facilitation of a felony is not a lesser included offense as a matter of law. It is,
       however, a lesser offense if the evidence fairly shows the conduct of an accused does
       not reach the level of an active participant with culpable intent in the crime, but
       shows he did some acts which would aid the principal offender in carrying out the
       crime committed.

State v. Johnny Davis Carr, No. 03C01-9111-CR-00354, slip op. at 2 (Tenn. Crim. App., at
Knoxville, Apr. 21, 1992).

        Here, the petitioner contends that there was proof that he did not intend for the victim to be
killed and had, in fact, abandoned the robbery once the shooting began. He argues that the jury could
have, therefore, found him guilty of nothing more than facilitation of felony murder. No witnesses,
however, appeared on his behalf at either the trial or the evidentiary hearing. He did not testify at
trial. The state produced evidence that the petitioner was the "mastermind" behind the robbery plot.
There was proof that the petitioner had selected the victim and provided information as to where he


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could be found. Although the petitioner himself was not armed, the evidence established that he was
aware that his co-defendants were carrying guns. Thus, there was overwhelming proof that the
petitioner was "an active participant with culpable intent in the crime." See Carr, slip op. at 2.
Although the petitioner now claims that he did not intend to participate in the murder of the victim,
again, there was no such proof presented at trial. As the post-conviction court observed, the primary
defense theory was one of abandonment of criminal intent after the shooting began. The jury
resolved the issue of abandonment in favor of the state. Intent to murder is not essential to felony
murder. Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 1956); Billy Grooms v. State, No. 03-C-01-
9103-CR-00092, slip op. at 3-4 (Tenn. Crim. App., at Knoxville, Nov. 6, 1991). Any error by the
omission in the instruction, therefore, in the context of the entire record, could be classified as
harmless error. Under these circumstances, it is our view that the petitioner would not have been
entitled to relief on this issue had it been presented on direct appeal. In consequence, the petitioner
has failed to establish that he was prejudiced by trial counsel's failure to present the issue as a ground
for relief on appeal.

                                                   III.

       In a related issue, the petitioner contends that his trial attorneys were ineffective for failing
to object to the jury charge, which did not contain an instruction on the natural and probable
consequences rule. In addition, he asserts that his appellate counsel was ineffective by failing to
preserve the issue for appeal.

       "The 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." State v. Richmond, 90 S.W.3d 648, 654 (Tenn. 2002) (citing State v. Carson, 950 S.W.2d
951 (Tenn. 1997)). The applicable definition of criminal responsibility provides the following:

        A person is criminally responsible for an offense committed by the conduct of
        another if:
        (2) Acting 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. . . .

Tenn. Code Ann. § 39-11-402(2) (1990). In State v. Howard, 30 S.W.3d 271 (Tenn. 2000), our high
court developed a test to be applied when criminal liability is based upon the natural and probable
consequences rule. Our supreme court held that the state was required to prove beyond a reasonable
doubt "(1) the elements of the crime or crimes that accompanied the target crime; (2) that 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." Howard, 30 S.W.3d at 276. Where the state seeks to prove that the crime charged is
the natural and probable consequence of the target crime, proper jury instructions should include a
reference to the natural and probable consequences rule. Richmond, 90 S.W.3d at 657.


                                                   -9-
        Initially, the petitioner has failed to demonstrate that he was convicted under a theory of
criminal responsibility. It was the state's theory at trial that he was the "mastermind." See State v.
Jason D. Pillow, No. M2002-01864-CCA-R3-CD (Tenn. Crim. App., at Nashville, February 27,
2004) (holding that an instruction on the natural and probable consequences rule is only necessary
when a defendant is charged under a theory of criminal responsibility (citing Richmond, 90 S.W.3d
at 654)). Moreover, the felony murder statute does not require that a homicide committed during
the course of one of the enumerated felonies be forseeable. See Tenn. Code Ann. § 39-13-202(a)(2)
(1990). "When 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." State v. Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000) (citing State v. Brown, 756
S.W.2d 700, 704 (Tenn. Crim. App. 1988). Thus, the defendant here was statutorily responsible for
any homicide committed during the course of the robbery and burglary, whether or not the homicide
was forseeable, and a natural and probable consequences instruction was not required. See State v.
Winters, 137 S.W.3d 641, 659 (Tenn. Crim. App. 2003). Under these circumstances, this court
would not have reversed the conviction based upon the omission of the natural and probable
consequences instruction. Thus, the petitioner has failed to establish that he was prejudiced by
counsel's failure to include the issue on appeal.

       Accordingly, the judgments of the post-conviction court are affirmed.




                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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