         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs October 1, 2002

                 GLENN A. SADDLER v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Wilson County
                             No. 97-0230    J. O. Bond, Judge



                     No. M2002-00597-CCA-R3-PC - Filed March 18, 2003

The petitioner was convicted of second degree murder and sentenced to imprisonment for twenty-
five years as a Range I offender. Following an evidentiary hearing and the dismissal of his petition
for post-conviction relief, the petitioner argues on appeal that prosecutorial misconduct and
ineffective assistance at his trial merit a new trial. We affirm the post-conviction court’s dismissal
of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

Harry A. Christensen and Henry Clay Barry, Lebanon, Tennessee, for the appellant, Glenn A.
Saddler.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Tom P. Thompson, Jr., District Attorney General; and Robert N. Hibbett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

       The facts of this case were set out in the opinion of this court on direct appeal, affirming the
conviction of the petitioner for second degree murder:

                       In this case, a jury heard testimony that the victim had
               approached, the defendant put his hands on [him] and apparently
               demanded some money. Further, the jury heard the defendant testify
               that the victim was beating him and had a knife. So too, a knife was
               found on the scene, and the victim was bruised about the face.
               However, this same jury also heard testimony that the defendant was
                angry and upset the night of the shooting, that the defendant had taken
                his shotgun with him that night, that the defendant had been drinking,
                that the knife found on the scene was unopened, that the defendant
                himself could not see whether the knife was open or not during the
                altercation, that the defendant had time to open his car and remove
                the shotgun before shooting the victim, that the defendant did not turn
                himself in to authorities at the scene, and finally that the defendant
                spontaneously admitted to another following the shooting, "I just shot
                a n____." Weighing all this evidence, the jury concluded that the
                conditions for "self-defense" had not been met.

State v. Glenn A. Saddler, No. M1999-00934-CCA-R3-CD, 2000 WL 924639, at *4 (Tenn. Crim.
App. June 30, 2000), perm. to appeal denied (Tenn. 2001).

        At the hearing on his petition for post-conviction relief, the petitioner proceeded on the
claims that the State committed prosecutorial misconduct during his trial and his trial attorney was
ineffective, presenting several witnesses in support of the latter claim. The petitioner did not testify
at the hearing. These two claims are related in that one of the ways in which trial counsel was
ineffective, according to the petitioner’s analysis on appeal, was that he failed to object to the State’s
improper arguments, in addition to his failure to present at the trial certain witnesses to bolster the
petitioner’s claim of self-defense.

                                              ANALYSIS

                               I. Prosecutorial Misconduct at Trial

         Initially, in our review of the petitioner’s claims, we note that, while specific references are
made to the transcript of the trial in the petitioner’s appellate brief setting out the allegedly improper
arguments of the State, the transcript itself is not a part of the record on appeal, nor does it appear
that it was presented to the post-conviction court to be relied upon in its ruling. Thus, the only
information which we have as to the State’s argument at trial is the excerpts, cited in the petitioner’s
brief, which he argues evidence prosecutorial misconduct. The general rule is that allegations, as
these excerpts are, set out in an appellate brief are not evidence. See, e.g., State v. Keller, 813
S.W.2d 146, 150 n.4 (Tenn. Crim. App. 1991). Accordingly, the objected-to arguments of the State
are not properly before this court. An additional problem as to the prosecutorial misconduct claim
is that, although the petitioner’s trial counsel was called by the petitioner as a witness at the hearing
on the petition for post-conviction relief, counsel was not asked about the alleged improper
arguments made by the State during the trial. In Davis v. State, 912 S.W.2d 689, 699-700 (Tenn.
1995), our supreme court considered a similar situation, concluding that the failure of a petitioner
to explain why the basis whereby his pretrial statement should have been suppressed or to question,
at the post-conviction hearing, trial counsel with regard to his claimed negligence in that regard
constituted a waiver of the allegation:



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                         The record shows the only "statement" made by the appellant
                consisted of a denial that he had known and worked for the victim
                and a failure to mention Homecrafters until the police mentioned it
                when asked where he had worked. [Trial counsel] filed a motion to
                suppress the statements, and at the suppression hearing, the trial court
                reserved a ruling on the matter until trial. The record does not
                indicate how the matter was dealt with by [second trial counsel] at
                trial, but apparently the trial court allowed the statements to be
                admitted. Appellant failed to question [second trial counsel] with
                regard to this issue nor has he indicated what would support
                suppression of the statements. He did state that he would get back
                to the issue at a later time in the cross- examination, but he never did.
                Appellant has failed to meet his burden of proving that [second trial
                counsel’s] performance was ineffective. Additionally, he has failed
                to establish that the suppression would have affected the verdict,
                especially in light of the strong evidence against him. He has failed
                to establish a claim of ineffective assistance of counsel regarding this
                issue.

         Accordingly, we conclude that, as to the claim of prosecutorial misconduct occurring during
the State’s closing argument, the petitioner has failed to prove his allegations by clear and
convincing evidence, as required. However, even if this were not the case, we would conclude that
the petitioner could not proceed on this claim because, not having been presented on direct appeal,
it has been waived. As provided by Tennessee Code Annotated section 40-30-210(f) (1997), "[t]here
is a rebuttable presumption that a ground for relief not raised before a court of competent jurisdiction
in which the ground could have been presented is waived." See also Tenn. Code Ann. §
40-30-206(g) (1997); House v. State, 911 S.W.2d 705, 706 (Tenn. 1995), cert. denied, 517 U.S.
1193, 116 S. Ct. 1685, 134 L. Ed. 2d 787 (1996). No explanation was offered as to why this claim
was not presented on direct appeal. See Tenn. Code Ann. § 40-30-204(e) (1997). Thus, the claim
is waived.

                               II. Ineffective Assistance of Counsel

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:



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               First, the defendant must show that counsel’s performance was
               deficient. This requires showing that counsel made errors so serious
               that counsel was not functioning as the “counsel” guaranteed the
               defendant by the Sixth Amendment. Second, the defendant must
               show that the deficient performance prejudiced the defense. This
               requires showing that counsel’s errors were so serious as to deprive
               the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

               In any case presenting an ineffectiveness claim, the performance
               inquiry must be whether counsel’s assistance was reasonable
               considering all the circumstances. . . . No particular set of detailed
               rules for counsel’s conduct can satisfactorily take account of the
               variety of circumstances faced by defense counsel or the range of
               legitimate decisions regarding how best to represent a criminal
               defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant 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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d) (1997).




                                                 -4-
        The claims as to trial counsel are that he was ineffective both for failing to object to the
State’s improper closing argument and in not presenting witnesses to bolster the petitioner’s theory
of self-defense. As for the prosecutorial misconduct component of this claim, there is no proof in
the record, as we have stated, of the State’s closing argument, and the petitioner did not question his
trial counsel about his conduct during the State’s closing argument when he called counsel to testify
at the post-conviction hearing. Accordingly, we conclude, as to this argument, that the petitioner
failed to establish by clear and convincing evidence either that trial counsel performed deficiently
or that he was prejudiced thereby.

       The petitioner alleged, also, that trial counsel was ineffective for failing to present certain
witnesses at the trial who would have bolstered his claim of self-defense. Testifying at the post-
conviction hearing, in this regard, were Walter Stafford, Grady Wharton, Marie Seay, and Glenda
Faye Nunnley.

        Stafford testified as to an earlier incident between the victim and the petitioner, not
specifying, however, when it occurred in relation to the murder. He said that the petitioner was
living with him at the time, and that the victim, who apparently was owed five dollars by the
petitioner, came into Stafford’s house, “caught [the petitioner] in the back of the collar and pulled
him out of the house and told him he was going to pay him his money this morning.” Stafford
objected to the victim’s behavior, and the victim then left. Stafford did not see the victim with a
weapon during the incident, and was not present when the petitioner killed the victim.

        Grady Wharton said that he knew both the victim and the petitioner. According to his
testimony, he saw, about a month before the crime, the victim push the petitioner against a wall and
then pull a knife. Others present stopped the altercation, and Wharton did not know what had
precipitated the trouble. He said that he was not present when the killing occurred.

        Marie Seay also knew both the petitioner and the victim. She had once seen the victim slap
the petitioner; and, on another occasion, the victim knocked on her door, looking for the petitioner.
He asked the petitioner for money that was owed and, being told the petitioner had no money,
“knocked him cold.” The victim then “jumped” on the petitioner and “grabbed him by the throat.”
The petitioner came to and pulled out a pocketknife, which was closed, and the victim then grabbed
the knife and told the petitioner he was going to cut his throat and kill him. Seay used a broom
handle to knock the knife from the victim’s hand, telling him to leave the house. The victim said
that he would kill the petitioner if he saw him outside and threatened to “do something” to Seay if
she did not return the knife to him. The victim then left her house. She said that this incident
occurred “[w]eeks or months” before the crime. Seay did not see the victim with a weapon, other
than the knife he took from the petitioner. She was not present when the petitioner killed the victim.

       Glenda Faye Nunnley testified that she was the victim’s first cousin. At the post-conviction
hearing, she said that, from her house, she had seen the petitioner shoot the victim:




                                                 -5-
                       Well, it was about two o’clock, little after two Christmas
               morning. At the time I was living across the street from where the
               incident happened, 215 Owen Street. I had awakened from the couch
               and I got up, looking out the door and I heard people, loud voices. I
               didn’t think anything of it at the time. The voices got a little louder
               and I was just looking down. At this time I saw that the car was
               running, and two people were coming from this car, was running. It
               was Robert Dean’s car. The car that he was driving. And seemed to
               be an argument going on. Well they were so loud I just figured it was
               like an argument. And at that time I only saw two people. I didn’t
               see [the petitioner] at the time because he was closer to the street.
               And the other two people I saw, I saw one person like going towards
               the person that I did see at the street which happened to have been
               [the petitioner]. And Travis Harris was in between [the petitioner]
               and Robert Dean and Robert Dean, at the time I didn’t know it was
               Robert Dean but Robert Dean was going toward [the petitioner]. At
               that time I heard one shot, I didn’t know if it was a gun shot, whether
               it was firecrackers or what that night, and I saw a person go down.
               Didn’t know it was Robert Dean at the time. And I heard the voice
               of [the petitioner] saying, oh man what did you do that for? You
               done gone and made me shoot that man. Then the car the [the
               petitioner] got into went down Market Street. At that time, like I said
               I didn’t know it was Robert Dean at the time, that had fallen and
               Travis went back over to the body, stood there for a couple of
               seconds, was looking like he didn’t know what to do. Then he turned
               around and went into the house across the street.

         She said that she had given a statement about this incident to the police, but she had not
contacted the petitioner’s trial counsel and had not known who was representing the petitioner at the
trial. Because she was a relative, she had told the victim’s family of what she had seen. She said that
she had not seen the victim or petitioner grab the other, but she “just saw them standing there. One
party was going towards another party. One party was standing in between these two people, and
then [she] heard a shot.” After the shot was fired, she heard the petitioner say, “[M]an, you’ve done
gone and made me shoot that man.”

        During trial counsel’s testimony at the hearing, post-conviction counsel asked him to explain
why he had decided not to call “some six exculpatory witnesses sitting on the bench.” Trial counsel
replied:

                       I have no specific recollection. The best of my [re]collection
               though is that we listed a lot of witnesses, we subpoenaed a lot of
               witnesses, they were not eyewitnesses to the events itself [sic]. Only,
               as I recall Travis Harrison, I think, was the only actual eyewitness to


                                                 -6-
               the offense. As to those other people it was my feeling based on my
               conversations, numerous conversations with [the petitioner] and
               based on my knowledge of the people, any discussion I would have
               had with them, some of them I think I talked to, others I may not have
               talked to, because as I recall during trial preparation [the petitioner]
               was supposed to have all the witnesses together at my office down on
               North Greenwood at the time one afternoon and he didn’t make it
               with them. I think I probably talked to them during the course of the
               trial while we were up here, because we were up here several days.
               But it was my feeling that some of them came with baggage. The
               testimony that I could have gotten out of them could have helped,
               could have hurt, and at that point in time in the trial we felt
               comfortable with the proof that had gone in, the way the proof had
               gone in.

                      Frankly, . . ., we had hoped that [the petitioner] was going to
               make a better witness than he did. I mean, I’ve seen [the petitioner]
               stand up in court and make pleas that I wish I could have made. But
               he didn’t do as well as we had hoped.

                       But as to why we didn’t put those witnesses on that would
               have been tactic and strategy at that time based on what I felt their
               testimony would be, what we would have gained from the testimony
               and what we could have lost from the testimony. Because, of course,
               [the petitioner] came into court with quite [a] bit of baggage.

        Trial counsel testified that, at trial, he had presented photographs of bruises on the
petitioner’s hands and face, caused by the victim, and described proof of self-defense which he had
presented at the trial:

                        It’s also my recollection that we put on a lot of proof about
               [the victim] coming to [the petitioner’s] apartment at Northfield and
               beating on the doors and [the petitioner] being scared and calling the
               police. It’s my recollection we had a number of policemen that
               testified. It’s my recollection that we probably used the dispatch logs
               and that kind of thing to show the fear that he had. And then, of
               course, [the petitioner] testified how fearful he was about the attack
               that was being made. We put in a lot of proof about the knife that
               [the victim] had. Although at the scene the blade was actually closed,
               it was not open. But in my recollection it was a big old Hawk bill
               knife.




                                                 -7-
        Trial counsel further explained on cross-examination why he had not called witnesses as to
the troubled background between the petitioner and the victim:

               Q.     What would have been their purpose if you had called them
                      or would they have had any purpose whatsoever?

               A.     The purpose would have been, I would presume, to show that
                      [the petitioner] and [the victim] had had problems in the past
                      and that [the victim] may have had a reputation for violence.
                      Now, I checked [the victim’s] record here in Wilson County
                      and he did have one prior assault but that had been nolled. So
                      we couldn’t get into that. And, like I said earlier, with the
                      witnesses, some of them came with baggage, some of them
                      knew more about [the petitioner] than we would have cared
                      for the jury to know. So, you know, it’s a two edge sword.
                      And with the proof the way it was at that time, I felt it was
                      better tactically not to use them. To keep it as simple as we
                      could and we put on a good self defense case.

       At the conclusion of the hearing, the post-conviction court found as follows:

                       Of course, the Court has heard what was stated and I think I
               understand it. I remember the trial. I remember a lot of the witnesses
               that, even though you know, it’s been a long time ago, because I knew
               [the petitioner] here a long time in years back. And what [the
               prosecutor] did at the trial as far as prosecuting, the statements and
               arguments that he made were purely theories of what the state’s
               theory is and they’re allowed to give that. They’re allowed to say that
               this evidence leads to this, or this evidence leads to that. And
               although it brings out an opinion based on maybe the argument of the
               proponent to the motion, it sounds like that person’s opinion, actually
               it’s an argument as to what the facts show. And what they believe
               those facts to show. And I don’t believe [the prosecutor] did anything
               wrong in trying the case. I didn’t see anything if I remember the case.

                       I believe all the witness statements and everything were turned
               over to the defense in this case. I think it’s open discovery,
               completely open on the part of the police department. I don’t think
               Ms. Nunnley’s statement was kept hidden anywhere. She was here,
               she’d been subpoenaed by the State of Tennessee to be here. She
               stayed during the whole time, and she’s right, she was in a room and
               couldn’t come in because she was a potential witness and witnesses
               can’t hear what other people are going to say prior to their testimony.


                                                -8-
               That’s the reason she couldn’t come in. It wasn’t trying to hide
               anything from her. The state chose not to use her in their case in
               chief. They didn’t have to use her. They had put on other proof as to
               how it happened, and they were satisfied with that proof that that
               would be sufficient to prove what the allegations were.

                        Then the [petitioner] here he came on and testified, and I
               remember his testimony, I thought he did a very poor job, [h]e’s
               usually good at it. He’s one of the best talkers of any people I’ve ever
               met. He could have made a living being a public speaker because he
               was good at talking. Always has been. He’s always been a nice guy,
               except like you say when he’s drinking and this type thing, that makes
               a little difference in him some time. But he has had a history of
               coming in and out of courts for different things himself, so he wasn’t
               unknown to the system. But he testified and the jury heard all of that,
               and they could have believed him or they could not have believed
               him. In this case they chose not to believe what he was saying as to
               how it actually happened. There was a lot of testimony about how he
               kept the gun coming out of his apartment up under his coat and he left
               and came back – a whole lot of testimony about the preparation of
               this right before the killing, what happened.

                       So, the jury had all of that, and the state and the defense
               attorney did a good job as far as painting the deceased as bad, that
               came out. He was indicated to be a bad character especially when he
               was drinking like Ms. Nunnley said. All of that came in. So, the jury
               just didn’t accept the way it happened as being justified under the self
               defense law and that was charged to them.

                       The proof has to be here today – would something brought to
               light here today change the course of the trial and render a different
               verdict, is really what it boils down to. I don’t see that it would have.
               [Trial counsel] testified that he thought he talked to every one, all the
               witnesses. He wasn’t especially sure one way or the other now, but
               thought he would have, and did. Either talked to them at one place
               or the other, either during the course of the trial or prior to trial, and
               interviewed them.

                       The Court’s going to deny the motion for relief.

       Initially, we note the post-conviction court announced its findings at the conclusion of the
hearing, and there are no written findings in the technical record. Following a post-conviction
hearing, a trial court is required to enter written findings of fact and conclusions of law addressing


                                                  -9-
all grounds for relief. See Tenn. Code Ann. § 40-30-211(b); Tenn. Sup. Ct. R. 28, § 9(A).
Nevertheless, the trial court's oral pronouncement of its findings from the bench does not necessarily
require reversal and can be harmless error. See State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn.
Crim. App. 1987). Here, the post-conviction court's findings and conclusions are sufficiently
comprehensive to allow for proper appellate review; hence, the failure to enter written findings and
conclusions was harmless. Tenn. R. App. P. 36(b).

        At the hearing, the only proof presented as to dealings between the petitioner and trial
counsel regarding relevant witnesses was the testimony of counsel that the petitioner did not appear
at counsel’s office with these witnesses, as he was supposed to do. Counsel believed that, during
the trial, he had talked to all relevant witnesses of whom he had been aware. He said that he
presented proof at trial as to the victim’s aggressiveness towards the petitioner; of the petitioner’s
fear of the victim, the petitioner calling police for assistance when the victim had beaten on the
petitioner’s door; and of the victim’s carrying a knife. Thus, at least to an extent, and perhaps a great
extent, the testimony of Stafford, Wharton, and Seay would appear to be very similar to testimony
presented at trial on behalf of the petitioner. As to his decision not to present certain unidentified
witnesses, trial counsel said that they came with “baggage.” Thus, as a matter of strategy, he decided
not to present these witnesses who were present at the trial. Trial counsel was not asked if he had
known of Glenda Faye Nunnley at the time of trial, although it seems likely that he did. However,
it appears that her testimony, that the victim was “going towards” the petitioner when the shot was
fired, would have been of little assistance to the defense in light of other evidence which was
presented. In this regard, we agree with the post-conviction court that the petitioner failed to show
that the testimony of any of these witnesses would have changed the outcome of the trial.
Accordingly, we conclude that the record supports the post-conviction court’s determination that the
petitioner did not establish that he was prejudiced by any of the questioned actions of trial counsel.

                                           CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the order dismissing the
petition for post-conviction relief.


                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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