         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    April 11, 2006 Session

              TERRY JAMAR NORRIS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-27229    John P. Colton, Jr., Judge



                     No. W2005-01502-CCA-R3-PC - Filed July 26, 2006


The petitioner, Terry Jamar Norris, appeals the dismissal of his petition for post-conviction relief,
arguing ineffective assistance of appellate counsel. Following our review, we affirm the dismissal
of the petition for post-conviction relief.

     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 NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

James E. Thomas, Memphis, Tennessee, for the appellant, Terry Jamar Norris.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jack Irvine, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

       In June 1999, the petitioner was convicted by a Shelby County jury of second degree murder.
The facts in this matter were set out in the direct appeal:

               On March 10, 1997, nineteen-year-old victim Keith Milem was found shot
       to death outside the home where he lived with his uncle. On the evening of March
       11, 1997, the [petitioner] was taken into custody by police and questioned about the
       crime. On March 13, 1997, the [petitioner] confessed to shooting the victim. The
       [petitioner] informed police of the location of the murder weapon, a nine-millimeter
       semiautomatic pistol, and police recovered the gun and submitted it for testing.
       Results of tests performed on the gun indicated that the fatal shots had indeed been
       fired from the [petitioner’s] gun.
        At trial, Lakendra Lavonne Mull testified that she and the [petitioner] were
roommates at the time of the crime, and she reported that at that time, the [petitioner]
was dating her cousin, Lateeska Newberry. Mull explained that the victim was also
her distant cousin, and she stated that Newberry and the victim had known one
another since attending elementary school together. Mull characterized the victim
and Newberry as her “best friends.”

        Mull testified that on March 10, 1997, the victim, Newberry, and a third
friend named Tim visited her apartment during the afternoon. Mull stated that the
[petitioner] was present at their apartment when the victim initially arrived, and she
reported that the [petitioner] spoke to the victim briefly upon the victim's arrival.
Approximately two hours after the victim arrived at the apartment, the [petitioner]
left and later returned with his brother. At the time the [petitioner] returned, the
victim, Newberry, Tim and Mull were engaged in conversation, and the victim and
Tim were drinking alcoholic beverages. Mull testified that the [petitioner] and his
brother stayed only ten minutes upon their return to the apartment before departing
a second time. Mull testified that the [petitioner] subsequently telephoned her to tell
her that he had left his gun at the apartment, and he soon returned to pick up the gun.
Mull explained that her young daughter lived with them, and the [petitioner]
generally did not leave the gun in the apartment with Mull's daughter. After picking
up the gun, the [petitioner] left for a final time.

        Mull recalled that approximately three hours after the [petitioner] picked up
his gun, she drove the victim home. Mull testified that the victim was “kind of
staggering because he had been drinking.” However, she maintained that the victim
“probably was more sleepy than full of alcohol” because he had not drunk “all that
much” while at her apartment. Mull recalled that when she left her apartment at
approximately 9:55 p.m., she saw the [petitioner] parked across the street from their
apartments in his “burgundy or maroon” 1993 Grand Am. She stated that when she
pulled out of the apartment complex, she saw the [petitioner] begin to follow her car
without his lights on, and she testified that the [petitioner] followed her car to the
victim's home, a drive which Mull testified took three to four minutes. Mull reported
that after she dropped the victim off in front of his home and turned her car around,
the [petitioner] flashed his “high beams” at her car. Mull stated that she last saw the
victim standing at the door to his home as she drove away.

         Mull reported that the [petitioner] did not return home on the night of the
murder, but she stated that the [petitioner] called her once that night. She recalled
that at approximately 6:00 a.m. the following morning, the [petitioner] returned to
their apartment to pick up clothes.

         Mull testified that the [petitioner] normally carries a gun. Mull further
testified that approximately a week prior to the homicide, she saw the [petitioner] put


                                          -2-
mercury covered with candle wax on the tips of bullets. When she asked him what
he was doing, the [petitioner] explained that the mercury “makes the bullet explode
when it enters something.”

        On cross-examination, Mull acknowledged that she told police she believed
the [petitioner] thought that his girlfriend, Lateeska Newberry, was in her car on the
night of the murder. She explained to police that she thought the [petitioner] was
jealous after seeing the victim and Newberry together at her apartment earlier in the
evening. She stated that she had known the [petitioner] to be jealous “[o]ver
[Newberry].” However, she stated that while the victim was at her apartment on the
day of the murder, the victim and Newberry were not affectionate and were “sitting
across the room from each other.”

        Charles Edward Milem, the victim's uncle, testified that the victim was living
with him at the time of his death. Milem testified that he was in his bedroom when
the victim was shot. Milem recalled that from his bedroom window, he saw the
victim get out of Mull's car and walk to the front porch of their home. As Mull's car
pulled away, Milem saw another car immediately pull up on “the wrong side of the
street.” Milem next heard the victim ring the doorbell, and he then heard voices
calling the victim. Milem testified, “One voice said, hey. My nephew repeated, who
[sic] there, who [sic] there. And another voice immediately said, come here.”
Following this, Milem heard three gunshots, which he claimed came from the car that
had pulled up after the victim was dropped off. At this point, he could no longer see
the victim standing in the street. Milem rushed to the door, saw the victim lying in
the street, and saw a car pull away. Milem stated that the car from which the shots
were fired “looked white up under the street lights” and “sound[ed] like a Cutlass.”
When Milem approached the victim, he noticed that the victim's hands were still in
his pockets.

         Byron Braxton of the Memphis Police Department testified that he was called
to the crime scene on March 10, 1997. He recalled that when he arrived at the scene,
paramedics were already there. Braxton testified that he saw the victim lying
face-down in the middle of the street, and when the paramedics rolled him over,
Braxton saw that the victim's hands were still in his pockets. He stated, “[T]he
shooter wasn't there to our knowledge. The consensus of the witnesses were that they
saw a white box-type Chevy headed toward [a nearby street]. It was occupied by two
to three male blacks. But they really couldn't give a description on the individual.”
Officers recovered three nine-millimeter shell casings from the scene. They also
found a bullet lodged in the door of a house near the home in which the victim lived.

        The State introduced the [petitioner’s] March 13, 1997 statement through the
testimony of Memphis Police Sergeant Dwight Woods. Woods participated in taking
the [petitioner's] statement, which including the following:


                                         -3-
Q.   Terry, do you know Keith Milem?

A.   Yes.

Q.   Are you aware that Keith Milem was shot and killed on
     Monday, March 10, 1997 at approximately 10:00 PM in front
     of 610 Loraine Drive?

A.   Yes.

Q.   Did you shoot Keith Milem?

A.   Yes.

Q.   What did you shoot Keith Milem with?

A.   A Smith and Wesson 9mm Automatic.

Q.   How many times did you shoot Keith Milem?

A.   I don't know.

Q.   Why did you shoot Keith Milem?

A.   Because he attacked me and hit me in the face and grabbed
     my arm.

Q.   Terry, tell me in your own words exactly what occurred
     before, during and after the shooting?

A.   Well from a couple of days before the shooting I heard my
     roommate Kim and my girlfriend Ranata talking about their
     cousin Keith or “Black” which is what they called him and I
     was suspicious about him the whole time and the day of the
     shooting he came to my home at 1104 Craft Road # 1
     (Southern Hills Apartments). I came home at about 9:00 that
     evening and saw him and my girlfriend talking. He was on
     the couch and she was on the love seat directly in front of him
     talking. So, I left[,] . . . thinking that they may be having a
     relationship, I was mad.

     I left my apartment and when I returned I saw my roommates
     [sic] car leaving the apartments and I thought my girlfriend


                               -4-
     was in the car also so I followed them to talk to my girlfriend
     but when they got to Keith's house Ranata was not in the car
     so I stopped to talk to Keith. I called Keith to the car and
     asked him what was up and he asked what was I talking about
     and I asked was him and Ranata in a relationship and he told
     me that it wasn't my business so I told him that it was my
     business and it seems as if he saw my gun on the seat and
     looking at the gun, he hit me on the left side of my face and
     like dove into the car. I grabbed my gun, he grabbed my arm
     and I snatched away from him and pointed my gun at him and
     pulled the trigger. When I saw him fall, I took off. After I
     left I went to the Kings Gate Apartments and got into a fight
     with a young man and then I went to Orange Mound where I
     hid my gun in abandoned apartment building on Arbra.

Q.   Terry, when you were following Kim and Keith, did you have
     your lights on or off?

A.   I had my lights on but I turned them off when we got to the
     corner of Tulane and Shelby Drive to see who was in the car
     but I could not.

Q.   Terry, what direction did you leave after you shot Keith?

A.   East on Loraine towards Tulane, I turned left and went north
     on Tulane to Shelby Drive. Turned right on Shelby Drive and
     went east.

Q.   Terry, describe your car that you drive?

A.   I drive a burgundy Pontiac Grand AM, 1993, 2-door SE.

Q.   Terry, does your car have fog lights on it?

A.   Yes sir, it has white fog lights.

Q.   Terry, do you know if Keith was drinking or drunk?

A.   Yes. He was drinking a gallon of wine with a friend in my
     home when I left. When I left and came back, he was still
     drinking some of the wine a while later.

Q.   Terry, were you drinking or using any type drugs?


                               -5-
       A.      No sir.

       Q.      Terry, did you recently put the mercury out of a thermometer
               into the end of the bullets that were in your gun and cover the
               ends with candle wax?

       A.      Yes sir[,] . . . I did that but not recently. It was when I first
               moved in to [sic] the apartment.

       Q.      Terry, when you first encountered Keith, was it your intention
               to shoot him?

       A.      No.

       Q.      Terry, is there anything else you can add to this statement that
               would aid in this investigation?

       A.      Yes sir, I'm sorry for what happened. I wish I could take it
               back.

       Q.      Did you give this statement of your own free will without any
               promises, threats or coercion?

       A.      Yes.

       Q.      Were you advised of your rights before you gave this
               statement?

       A.      Yes.

         The [petitioner] testified on his own behalf at trial. He claimed that on one
of the occasions while he was away from his apartment on the afternoon prior to the
murder, he received a page from his girlfriend, who was at his apartment with Mull
and the victim. The [petitioner] stated that as he drove back to his apartment in
response to the page, he passed Mull's car on the road. He testified that he believed
his girlfriend was in the car with Mull, and he therefore “blinked” his lights at Mull's
car. The [petitioner] maintained that when Mull didn't stop, he blew his horn and
flashed his lights a second time. He then followed her. The [petitioner] maintained
that he turned off his lights in order to see who was in Mull's car. He explained, “I
couldn't see because her car . . . had been in an accident. It was real . . . crushed up
on one side, and I couldn't see in it.” The [petitioner] stated that he followed Mull's
car, continuing to try to get her attention, but eventually lost the car after he turned
around.


                                          -6-
                 The [petitioner] testified that after losing sight of Mull's car, he saw the
         victim standing in the yard of his uncle's home. The [petitioner] recalled that he
         “called [the victim] over” to his car. When the victim approached, according to the
         [petitioner], the two men engaged in an argument about the [petitioner’s] girlfriend.
         The [petitioner] described the victim as angry and stated that the victim's speech was
         slurred. The [petitioner] maintained that during the argument, the victim hit him, and
         he tried to “fend [the victim] off.” The [petitioner] claimed that the victim then
         “dove in[to]” his car, while still hitting the [petitioner], and attempted to grab the
         [petitioner's] gun, which was in plain view. According to the [petitioner], he tried to
         push the victim out of the car, and as he pushed the victim away, he raised his gun
         and shot the victim.

                  The [petitioner] admitted that at the time he shot the victim, he was
         “enraged.” The [petitioner] also admitted that on the night of the murder, he was
         “suspic[ious]” that the victim and Newberry, his girlfriend, were starting a
         relationship. He testified that on the day of the shooting, he and Newberry were in
         “a fight” and were not really speaking. The [petitioner] recalled that he was “upset
         at [his] girlfriend.”

                 The [petitioner] testified that on the day of the shooting, he retrieved his gun
         from the apartment that he shared with Mull because of Mull's “under-age daughter
         and just for safety reasons.” He admitted to putting mercury on the tips of bullets,
         stating that “if [the mercury] got into a person . . . it would make the wound more
         severe.” However, the [petitioner] maintained that he altered his bullets solely “for
         protection.”

State v. Terry Norris, No. W2000-00707-CCA-R3-CD, 2002 WL 1042184, at **1–5 (Tenn. Crim.
App., at Jackson, May 21, 2002), perm. to appeal denied (Tenn. Nov. 4, 2002).

        The petitioner filed a pro se petition for post-conviction relief, followed by an amended
petition after the appointment of counsel and a supplement to amended petition. Pertinent to this
appeal, the petitioner alleged that appellate counsel was ineffective for not correctly stating his State
v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), issue1 in his application for permission to appeal to
the Tennessee Supreme Court and failing to raise as an issue in both his motion for a new trial and
his direct appeal the trial court’s erroneous jury instruction on the definition of “knowingly.”




         1
          In Huddleston, our supreme court held that a judicial determination of probable cause must occur within forty-
eight hours of a warrantless arrest to protect a defendant’s Fourth Amendment rights. 924 S.W .2d at 672. A confession
obtained in violation of this forty-eight-hour time-line is subject to being excluded under a “fruit of the poisonous tree”
analysis. Id. at 674.

                                                           -7-
                                        Evidentiary Hearing

                                         Petitioner’s Proof

        At the petitioner’s evidentiary hearing, Lieutenant A.J. Christian of the Brighton Police
Department testified that in 1997 he was a detective with the Memphis Police Department’s
Homicide Bureau involved in the petitioner’s case. Christian said that the petitioner’s arrest report
showed that he was in police custody at the homicide office on March 11, 1997, at 7:30 p.m. He
could not recall the exact time that the petitioner was taken into custody and explained that the arrest
ticket would have the actual time and that the arrest narrative report “was just a supplement
documenting the course of action that was taken after he was taken into custody.”

        Marcia Daniel, the petitioner’s mother, testified that on March 11, 1997, police officers
“called between 4:30 [p.m.] and five looking for [the petitioner].” Daniel located the petitioner and
said he arrived home “between five and 5:15 [p.m.].” The police, who had arrived at the residence
“maybe three to five minutes” before the petitioner, left with him “approximately about 5:45” p.m.
Daniel testified that she told trial counsel, but not appellate counsel, of these events. Daniel
acknowledged that the petitioner called her on March 13, 1997, and that, although she could not
recall the time of the phone call, he told her he had agreed to talk to the police but wanted to talk
with her first.

        Trial counsel testified that during his representation of the petitioner, he believed he had
“open-file discovery” from the State. Asked if he was aware that the petitioner was in police custody
at 7:30 p.m. on March 11, 1997, trial counsel stated “that either [he] was aware or [he] should have
been aware. [He], frankly, [did not] remember if anything was on the arrest ticket or not.” Trial
counsel said that at the time he argued the petitioner’s motion to suppress his statement to police,
he was aware of the “[t]he 48 hour rule” announced in Huddleston but acknowledged he “failed to
raise that issue.” Trial counsel also acknowledged that he did not object to the definition of
“knowingly” in the jury instructions. On cross-examination, trial counsel testified that prior to the
petitioner giving his statement on March 13, 1997, he was presented with “an advice of rights form”
at 4:05 p.m. and signed it at 4:12 p.m.

        The petitioner testified that he told appellate counsel that he was arrested at his mother’s
house on March 11, 1997, “[b]efore 7 p.m.” and that more than forty-eight hours passed before he
gave his statement to police on March 13, 1997. He acknowledged that the advice of rights form
showed that he was given the form at 4:05 p.m. and that he signed it at 4:12 p.m. on March 13, but
said he did not put the time on it and could not recall exactly what time he signed it, only
remembering “[it] was after the evening meal in the jail.” The petitioner also acknowledged signing
his police statement at 8:20 p.m. and said that he actually gave the statement verbally before this
time.

      On cross-examination, the petitioner acknowledged that he was not in custody at 4:05 p.m.
on March 11, 1997. He testified that the police initially came to his mother’s house that day at 6:05


                                                  -8-
p.m., but left because he was not at home, and then returned “[s]omewhere around” 7:00 p.m. to
question him. He acknowledged that he agreed to talk to the police on March 13, 1997, in exchange
for being allowed to talk to his mother, stating that he was able to reach her at 6:50 p.m.

                                             State’s Proof

         Appellate counsel testified that he represented the petitioner on his motion for a new trial and
on appeal. Discussing the petitioner’s Huddleston claim, which he raised in the petitioner’s motion
for a new trial and on appeal, appellate counsel said he focused on the fact that the petitioner’s
confession “was clearly illegal” because “from the record [the police] didn’t have probable cause to
arrest [the petitioner] in the first place.” Asked if he thought the amount of time the petitioner was
in custody prior to giving his confession was a valid issue to pursue, appellate counsel answered that
he “apparently” did not because he did not raise it on appeal. As for the jury instructions defining
“knowingly,” appellate counsel stated that “there’s no question that there was an error in the jury
instructions, but [he did not] think there was any question that it was harmless error” and, therefore,
did not raise it in the motion for a new trial or on appeal.

                                             ANALYSIS

        On appeal, the petitioner argues that appellate counsel was ineffective for failing to show at
his motion for a new trial hearing that his police statement was taken more than forty-eight hours
after he was arrested without a warrant in violation of the holding in Huddleston and for failing to
raise as an issue in his motion for a new trial or on appeal the trial court’s erroneous definition of
“knowingly.” We will address these issues separately.

                                       I. Standard of Review

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court's application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court's findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                               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)


                                                  -9-
(noting that 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, 687, 104 S. Ct. 2052, 2064, 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:

        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 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 be 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).

       We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and


                                                  -10-
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). A
person charged with a criminal offense is not entitled to perfect representation. See Denton v. State,
945 S.W.2d 796, 796 (Tenn. Crim. App. 1996). As explained in Burns, 6 S.W.3d at 462, “[c]onduct
that is unreasonable under the facts of one case may be perfectly reasonable under the facts of
another.”

        Finally, in determining whether appellate counsel was ineffective, the same Strickland
standards discussed above are applied and the “[p]etitioner must show that counsel’s performance
was deficient and that petitioner was prejudiced by this deficiency.” See Porterfield v. State, 897
S.W.2d 672, 678 (Tenn. 1995) (citing Cooper v. State, 849 S.W.2d 744, 746-47 (Tenn. Crim. App.
1993)). “Generally, the determination of the issues to present on appeal addresses itself to the
professional judgment and sound discretion of appellate counsel.” Id. (citing Cooper, 849 S.W.2d
at 747).

                                    III. Huddleston Violation

        The petitioner argues that “appellate counsel was ineffective for failing to show at [his]
motion for new trial hearing that [his confession] was given more than 48 hours after his arrest in
violation of State v. Huddleston.” However, in the petitioner’s direct appeal, this court determined
there was no Huddleston violation, specifically explaining:

               At the hearing on the motion to suppress the [petitioner’s] statement, the
       evidence revealed that the [petitioner] was taken into police custody for questioning
       without a warrant on the evening of March 11, 1997. Officers transported the
       [petitioner] to the Memphis Police Department Homicide Office for a formal
       interview. There, he was advised of his rights. According to officers, the [petitioner]
       refused to sign a waiver of rights form, but agreed to talk to the officers. At the time,
       the [petitioner] denied any involvement in the death of the victim. At 8:20 p.m. on
       March 11, 1997, the [petitioner] was allowed to telephone his mother. Officers then
       booked the [petitioner] into jail. The [petitioner’s] “arrest ticket” indicated that the
       [petitioner] was arrested at 8:45 p.m. on March 11, 1997.

              An officer who participated in questioning the [petitioner] testified that on
       March 13, 1997, the [petitioner] was again advised of his rights, and he signed a
       waiver of rights form at 4:05 p.m. The [petitioner] then told officers that he did not


                                                 -11-
         wish to make a statement until he spoke to his mother, and the officers therefore
         allowed the [petitioner] to telephone his mother at 6:50 p.m. At 7:20 p .m., the
         [petitioner] made a statement to the officers, in which he confessed to shooting the
         victim. At 8:20 p.m., the [petitioner] signed the typewritten statement that he made
         to police. The officers then allowed the [petitioner] to make another phone call at
         8:23 p.m. According to one officer, during the [petitioner's] interview on March 13,
         the officers fed him a meal.

                  ....

                 In this case, the [petitioner] was arrested at 8:45 p.m. on March 11, 1997, and
         he confessed to the crime at 8:20 p.m. on March 13, 1997. An arrest warrant was
         obtained on March 14, 1997. Thus, although the [petitioner] was detained without
         a warrant and without a judicial determination of probable cause, he was not held for
         more than forty-eight hours prior to his confession. As our supreme court has noted,
         “if the statement was given prior to the time the detention ripened into a
         constitutional violation, it is not the product of the illegality and should not be
         suppressed.” Huddleston, 924 S.W.2d at 675.

Terry Norris, 2002 WL 1042184, at **7–9.2

        In its order denying the petitioner post-conviction relief, the post-conviction court found the
petitioner’s Huddleston argument to be without merit:

                 Although the Huddleston issue was addressed on direct appeal, the Court will
         quickly address the issue in regard to the ineffective assistance of counsel claim
         against Appellate Counsel. Petitioner asserts that his statement should be excluded
         as “fruit of the poisonous tree” because it was given after forty-eight (48) hours of
         detention with no probable cause determination. However, the testimony does not
         support the claim. The Petitioner signed an Advice of Rights form at 4:12 P.M. on
         March 13, 1997. The testimony of Petitioner’s mother indicated the police left her
         home around 5:45 P.M. on March 11, 1997. The Petitioner admitted that he was not
         in custody at 4:05 P.M. on March 11, 1997; and also admitted he agreed to talk with
         police around 4:05 P.M. on March 13, 1997. The Petitioner stated that he agreed to
         speak with police in order to get a phone call to his mother. His testimony further
         indicated that he then tried to contact his mother but was unable to reach her until
         about 6:50 P.M. on March 13, 1997. The Police stuck to their word and waited until
         the Petitioner was able to speak to his mother before taking his statement. The



         2
          In addition to determining that the petitioner was not held more than forty-eight hours prior to giving his
statement to police, this court also found the police had probable cause to arrest the petitioner on March 11, 1997. Terry
Norris, 2002 W L 1042184, at *10.

                                                          -12-
        Petitioner cannot claim the time period was over forty-eight (48) hours when it was
        due to his desire to speak with his mother before making his statement.

        We agree with the post-conviction court that this issue is without merit. Although the
petitioner contends that his direct appeal would have turned out differently had appellate counsel
showed that he was in custody more than forty-eight hours at the time he gave his statement to
police, he has failed to meet his burden of showing that he actually was in custody more than forty-
eight hours prior to giving his confession at 7:20 p.m. on March 13, 1997. On direct appeal, this
court found the petitioner was arrested at 8:45 p.m. on March 11, 1997. At the post-conviction
hearing, there was only conflicting testimony offered as to when the petitioner was taken into
custody, but no records were entered into evidence to show that this court erred when, on direct
appeal, it concluded that the petitioner was arrested on March 11, 1997, at 8:45 p.m. Accordingly,
the record supports the determination of the post-conviction court that this claim is without merit.

                                  IV. Definition of “Knowingly”

         The petitioner argues that “appellate counsel was ineffective by failing to raise as an issue
in [his] motion for new trial, or as plain error on appeal, the trial court’s failure to give the proper
jury instruction correctly defining the mens rea requirement of knowingly as a result of conduct
offense.” During the petitioner’s second degree murder trial, the trial court gave the following
instruction on the definition of “knowingly”:

                 “Knowingly” means that a person acts knowingly with respect to the conduct
        or to circumstances surrounding the conduct when the person is aware of the nature
        of the conduct or that the circumstances exist. A person acts knowingly with respect
        to a result of the person’s conduct when the person is aware that their conduct is
        reasonably certain to cause the result.

In State v. Page, this court explained that “a knowing second degree murder is strictly a
‘result-of-conduct’ offense. The result of the conduct is the only conduct element of the offense;
the ‘nature of the conduct’ that causes death is inconsequential.” 81 S.W.3d 781, 787 (Tenn. Crim.
App. 2002) (citing State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000)). In State v. Faulkner, 154
S.W.3d 48, 59 (Tenn. 2005), our supreme court clarified that “superfluous [nature-of-conduct]
language in the ‘knowingly’ definition did not lessen the burden of proof because it did not relieve
the State of proving beyond a reasonable doubt that the defendant acted knowingly” and, therefore,
constituted harmless error. The petitioner concedes in his brief “that if the Tennessee Supreme
Court’s holding in Faulkner is correct, it would negate any argument that [appellate counsel] should
have raised the erroneous definition of knowingly given by the trial court for the first time on
appeal.” This court is without authority to rule that Faulkner was wrongly decided. Accordingly,
this issue is without merit.




                                                 -13-
                                      CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the post-
conviction court.

                                                   ___________________________________
                                                   ALAN E. GLENN, JUDGE




                                            -14-
