            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE

         RONALD BRADFORD WALLER v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Hamilton County
                        No. 210655     Douglas A. Meyer, Trial Judge



                    No. E1999-02034-CCA-R3-PC - Decided July 18, 2000


The petitioner was convicted in the Hamilton County Criminal Court in 1992 of first degree murder,
especially aggravated robbery, and theft over $1,000, receiving an effective sentence of life plus
twenty-three years. The convictions and sentences were affirmed on direct appeal in 1993; and the
petitioner subsequently filed a petition for post-conviction relief, presenting as issues, whether there
was a variance between the indictment and the proof, whether he was improperly compelled to
participate in a courtroom demonstration, whether he received ineffective assistance of counsel at
trial and on direct appeal, whether his convictions constitute double jeopardy, whether the trial court
erred in evidentiary rulings, whether he was improperly convicted because of prosecutorial
misconduct or cumulative errors at the trial, and whether his convictions amount to a miscarriage
of justice. Finding no error, we affirm the judgment of the trial court denying the petition for post-
conviction relief.

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

GLENN, J., delivered the opinion of the court, in which HAYES, J., and WALKER , SP.J., joined.

Ronald Bradford Waller, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, Ellen H. Pollack, Assistant Attorney General,
William H. Cox, III, District Attorney General, and C. Leland Davis, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner, Ronald Bradford Waller, appeals as of right from the Hamilton County
Criminal Court’s denial of his petition for post-conviction relief after an evidentiary hearing. The
petitioner was convicted in 1992 of first degree murder on counts alleging both premeditation and
felony murder; especially aggravated robbery; and theft of property valued at more than $1,000. The
petitioner received a life sentence on the first degree murder charge; twenty years as a Range I
offender on the especially aggravated robbery charge, a Class A felony; and three years as a Range
I offender on the theft charge, a Class D felony. The latter two sentences were ordered to be served
concurrently with each other and consecutively to the life sentence for an effective sentence of life
plus twenty-three years in the Department of Correction.

       On direct appeal, the petitioner raised four issues: (1) whether the evidence was sufficient
to support the verdicts; (2) whether the petitioner was prejudiced by the delayed admission of alleged
homosexual conduct on the part of the victim; (3) whether the petitioner’s convictions of first degree
murder and especially aggravated robbery could both stand; and (4) whether consecutive sentencing
was proper. See State v. Ronald B. Waller, No. 03C01-9212-CR-00429, 1993 WL 398452, at *1
(Tenn. Crim. App., Knoxville, Oct. 6, 1993), perm. app. denied (Tenn. Feb. 7, 1994). This court
found no merit to these issues and affirmed the judgments. See id.

         On May 10, 1996, the petitioner filed a petition for post-conviction relief with the Hamilton
County Criminal Court. After a full evidentiary hearing, petitioner’s application for post-conviction
relief was denied.1 In the present appeal, the petitioner alleges a substantial number of grounds for
relief, which we organize in the following manner:

               I.     Whether an unconstitutional variance to the indicted
                      offense of felony murder occurred during the trial;

               II.    Whether petitioner was improperly compelled to
                      participate in a demonstration during trial and in the
                      presence of the jury;

               III.   Whether petitioner was denied effective assistance of
                      counsel both at trial and on direct appeal;

               IV.    Whether petitioner’s convictions violated principles of
                      double jeopardy;

               V.     Whether the trial court’s evidentiary rulings involving
                      photographs, a writing, and expert testimony amounted
                      to reversible error;

               VI.    Whether alleged improper comments, arguments, and
                      participation in a demonstration resulted in
                      prosecutorial misconduct amounting to reversible error;



       1
         The procedural background of this case includes a remand for further findings of fact and
conclusions of law based on this court’s initial review of the post-conviction court’s denial of post-
conviction relief. See Ronald Bradford Waller v. State, No. 03C01-9702-CR-00054, 1998 WL
743654 (Tenn. Crim. App., Knoxville, Oct. 15, 1998). We did not reach the merits of petitioner’s
claims. Subsequent to that remand, the post-conviction court, in a ten-page document, denied the
petition for post-conviction relief. It is this denial that we now review.

                                                 -2-
               VII. Whether cumulative errors resulted in a trial that was
                    fundamentally unfair; and

               VIII. Whether petitioner’s convictions were the result of a
                     fundamental miscarriage of justice.

        After a painstaking examination of the voluminous record and a thorough consideration of
the issues presented, we find no reversible error and therefore affirm the post-conviction court’s
order denying the petition for post-conviction relief.

                                               FACTS

         The facts of this case have been set out fully in our opinion on direct appeal. The petitioner
testified at trial that he left San Francisco, California, on December 26, 1990, to hitchhike to his
mother’s home in Port Richie, Florida. He was twenty-two years old at the time, and was 6'1" tall.
On New Year’s Eve, he arrived in Cleveland, Tennessee, where he spent a few days visiting friends.
On January 9, 1991, the petitioner was back on the highway, hitchhiking to Florida. His first ride
took him as far as the interchange of Interstates 24 and 75. He walked to a spot where he could catch
a ride headed south on Interstate 75 towards Atlanta. Two cars stopped, and he accepted a ride from
the victim, Harold Jewell, in his red, 1975 Chevrolet Impala.

        Sissy Holloway, the night clerk at the Quality Inn located at Interstate 75 and Ringgold Road,
just outside Chattanooga, testified that she checked the victim into a room at 11:30 p.m. Jewell
signed the registration card with the name Howard Johnson and gave an Atlanta address. Jewell was
accompanied by a neat-looking young man in his early twenties. The petitioner admitted that he was
the individual with Jewell.

        Floyd Fuller, the Director of Corrections for Hamilton County, who also lived at the Beaver
Creek Apartments, testified that in the early morning hours of January 10, 1991, he was awakened
by loud screams for help. He looked out his window in the direction of the screams and saw two
males outside in the backyard area behind the building next to his. The taller of the two was pulling
the other back towards the neighboring building. Fuller jumped into sweat pants and ran outside
while his wife called the police. The police arrived at the apartment complex at approximately 2:00
a.m. and, after surveying the area using flashlights, found nothing amiss.

        Iris Anderson testified that she cleaned the victim’s apartment regularly and, on January 10,
she arrived at about 9:30 a.m. She noticed that the victim’s car was gone, so she used her key to
enter the apartment. Inside she was surprised to find lights on since she assumed that Jewell was not
at home. She called out to him and then turned to the living room area where she saw his body lying
in a pool of blood.

       The petitioner testified that Jewell had offered to let him stay at the motel and then drive on
to Atlanta with him the next day. The petitioner only wanted to shower and then be on his way.
Once in the motel room, according to the petitioner, the victim, while pretending to retrieve some

                                                 -3-
items from the bathroom, watched the petitioner shower through a clear shower curtain and then,
once the petitioner emerged from the bathroom, propositioned the petitioner to take part in sexual
activity. The petitioner testified that Jewell was lying naked on the motel bed. The petitioner
further testified that he refused, and the victim then forced him at gunpoint to ride to the victim’s
home which was not in Atlanta but at the Beaver Creek Apartments, some ten-minutes’ drive away.

         The petitioner testified that when he and the victim reached the apartment in the early hours
of January 10, the victim, still holding a gun on him, told him to get undressed. The petitioner then
described a struggle that included his reaching for a knife in his pants pocket; somehow flipping it
open and knocking the gun out of Jewell’s hand. In the struggle, Jewell partially folded the knife
back over the petitioner’s finger, cutting it. The petitioner testified that he pushed the victim down
and then, with his jeans still halfway down, opened the patio door and hobbled into the grass where
he fell down. The victim followed him; they both cried for help and continued the struggle. Finally,
Jewell told the petitioner he could collect his belongings and leave. The petitioner’s belongings
consisted of a small daypack with a sleeping bag attached to the bottom; a jacket; and a shoulder bag
in which the petitioner testified he kept a road map, his money, an address book, and a .25 caliber
automatic pistol. The pistol, one shell, and the clip were in a smaller tan pouch inside the shoulder
bag. At one point, the petitioner testified that all of his belongings were locked in the car. Later, in
explaining why he went back into the apartment with Jewell after the fight, the petitioner testified
that the jacket and shoulder pouch with the gun were inside the apartment. Wherever those
belongings were, the knife, which the petitioner testified had sentimental value, was apparently in
the apartment on the floor.

        The petitioner further testified that, once back inside the apartment, a new fight ensued, with
the victim reaching for the gun and the petitioner trying to stop him. At this point, the petitioner
grabbed a knife with a porcelain handle that was lying on a cabinet. According to the petitioner,
Jewell grabbed the petitioner’s arm, bit the petitioner’s finger, and continued to struggle to reach the
gun that was on the floor. The petitioner testified that the two were standing up, and he cut the
victim until the victim stopped as both fell to the floor.

       When he saw the police arrive, the petitioner testified he ran out of the apartment and hid in
some bushes because he was frightened. He took off his socks, shoes, and pants, thinking they were
bloody, and hid them beside an air conditioning unit.

        Once the police left, the petitioner returned to the apartment where he began to search for
something to wrap around his bleeding hand. In the victim’s bedroom, he found a bandana in a
dresser drawer. An empty gun holster fell out onto the floor. He looked in the victim’s closet for
pants to wear and broke into the victim’s briefcase to get his car keys. He also took a jar of change
that he found in a closet and some Xanax pills that were in one of four bottles of pills in the victim’s
briefcase. He got in the victim’s car and first drove back to the Quality Inn to think through what
he should do, but the room was locked. He then drove to Florida, arriving on the same day, January
10.

        On January 12, Officer Longworth of the Port Richie Police Department was on patrol and

                                                  -4-
noticed the red Chevrolet parked at the petitioner’s mother’s residence. Longworth checked the tag
number through a computer system and discovered that the car was stolen in the course of a
homicide. He called for assistance and, at about 2:15 a.m. on January 12, knocked on the door of
the petitioner’s mother. The petitioner came to the door and was immediately taken into custody.

       The State’s proof included the testimony of Dr. Frank King, medical examiner for Hamilton
County. He noted that the victim was a fifty-one-year-old male, 5'6" tall, weighing 150 pounds. The
victim’s personal physician described Jewell as having decreased pulmonary function compatible
with emphysema. Jewell was a heavy smoker.

       Dr. King testified that he found multiple, blunt trauma injuries to the victim’s face, including
both eyes, his forehead, the side of his nose, and both corners of the mouth. Dr. King testified that
these wounds were potentially fatal and could not have been caused by a fall but by multiple blows,
possibly by a fist. Dr. King testified further as to bruising injuries on the victim’s hands and arms:

               Q. In your opinion, what do they indicate or are they indicative
                  of, the bruising to the hands?

               A. The contusions -- the pattern of injury of these contusions on
                  the hand is consistent with what’s called defensive wounds.
                  If a person is in a fight, they are defending themselves against
                  blows from a blunt object, they tend to block those blows
                  with the backs of the arms or hands. Sometimes you see one
                  or both hands and arms involved. In this particular case, Mr.
                  Jewell being an older gentleman, less physically able to fight,
                  this pattern of injury fits the expected defensive posture of
                  someone of his age, size and so on and that is simply to cover
                  up with his hands, exposing the backs of his hands and arms
                  to blunt trauma blows. These injuries would not be expected
                  in this pattern had the decedent made a fist and struck things
                  with his fist. In that case you would tend to see injuries over
                  the bony prominences, the knuckles of the fingers and hands
                  and so on. I would say these are consistent with a defensive
                  action or posture by the decedent. . . .

               Q. All right, tell us about the injury to the neck and throat area,
                  Doctor.

               A. The injury to the front of the neck consisted of multiple
                  incisional wounds applied from side to side across the neck,
                  the full width of the neck from side to side. This incisional
                  wound actually consisted of multiple separate passes of a
                  sharp instrument across the neck because the different cuts
                  overlap going through the same open injury in the neck. I

                                                 -5-
                   can’t say exactly how many times a sharp edge was passed
                   across the neck. I can only estimate about ten or fifteen.

               Q. Ten or fifteen?

               A. Yes, separate forceful incisions across the neck. This
                  incisional wound was quite deep and extended completely
                  through the airway to the thyroid gland, to the left side of the
                  hyoid bone, which is a small bone in the neck, also
                  completely through the esophagus which is the food
                  swallowing tube from your mouth to your stomach and also
                  severed both carotid arteries which supply blood to the face
                  and brain and also both jugular veins which take blood from
                  the head back down through the neck to the chest. An injury
                  of this sort is obviously fatal and [I] would not expect the
                  decedent to survive very long after receiving that injury.

        Dr. King testified that one part of his investigation involves relating the body to the findings
at the scene. This investigation includes the review of pictures and evidence from the scene. Dr.
King testified that:

               In this case, the scene photographs show the decedent face down on
               the floor with his left arm under his head and his right arm sort of
               under his body also. The blood present on him as he is on the floor
               is coming almost all from his neck and goes straight down onto the
               floor and actually goes over this left arm down onto the floor. The
               blood at the scene was immediately under his face, neck and chest
               area in a big pool.

        Joseph Errera, a special agent with the FBI, testified as a serology expert. Based on known
blood samples from both the petitioner and the victim, Errera testified that blood samples from the
living room carpet and the utility room area of the victim’s apartment, from the gun at the scene, and
from the back of the T-shirt found underneath the victim all came from petitioner. Errera testified
that blood on the inside and outside surfaces of the rear patio door and on the porcelain-handled
knife came from the victim. He testified further that he did not attempt to determine the source of
blood on the inside doorknob to the patio door because he was able to visually identify fingerprint
ridges and did not want to disturb those prints. He only identified this as human blood.

        Max Jarrell, a special agent with the FBI, testified as a fingerprint expert. His testimony as
to the prints found on the outside and inside doorknobs of the rear patio door indicated that one
fingerprint and one palm print on the outside doorknob belonged to petitioner; and one palm print
present on the inside doorknob belonged to petitioner.

                                             ANALYSIS

                                                  -6-
        At a post-conviction evidentiary hearing, the burden is on the petitioner to prove the
allegations of fact entitling him to relief by clear and convincing evidence.2 See Tenn. Code Ann.
§ 40-30-210(f) (1997). “Evidence is clear and convincing when there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.” Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App.), perm. app. denied (Tenn. 1998) (citing Hodges v. S.C. Toof
& Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)). On appeal, we are bound by the trial court’s
findings of fact unless we conclude that the evidence in the record preponderates against those
findings. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. app. denied (Tenn.
1990).

                                             I. Variance

       The petitioner argues that the prosecution developed a case throughout the trial of felony
murder based on kidnapping, a fatal variance from the indicted offense of felony murder based on
especially aggravated robbery and theft of property.3 This course of action, according to the


       2
       Because this petition was filed on May 10, 1996, it is governed by the provisions of the 1995
Post-Conviction Procedure Act, which applies to all petitions filed after May 10, 1995. See Tenn.
Code Ann. § 40-30-210, Compiler’s Notes (1997).
       3
           The indictment for first degree murder stated the following:

                 THE GRAND JURORS for the State aforesaid, being duly
                 summoned, elected, impaneled, sworn and charged to inquire for the
                 body of the County aforesaid, upon their oaths present:
                         That Ronald Bradford Waller heretofore on January 10, 1991,
                 in the County aforesaid, did unlawfully, intentionally, deliberately
                 and with premeditation kill Howard C. Jewell, in violation of
                 Tennessee Code Annotated 39-3-202, against the peace and dignity
                 of the State.
                 SECOND COUNT:
                         THE GRAND JURORS for the State aforesaid, being duly
                 summoned, elected, impaneled, sworn and charged to inquire for the
                 body of the County aforesaid, upon their oaths further present:
                         That Ronald Bradford Waller heretofore on January 10, 1991,
                 in the County aforesaid, did unlawfully and recklessly kill Howard C.
                 Jewell during the perpetration of Especially Aggravated Robbery,
                 Especially Aggravated Burglary and Theft of Property, in violation
                 of Tennessee Code Annotated 39-13-202, against the peace and
                 dignity of the State.

       The applicable version of § 39-13- 202 stated:
                                                                                         (continued...)

                                                  -7-
petitioner, resulted in a fatal variance and a violation of petitioner’s constitutional rights.4 The State
contends that the prosecution merely described the preamble to the crimes and that, since the
petitioner was convicted of premeditated and deliberate murder as well as felony murder, the alleged
variance did not affect the petitioner’s substantial rights.

       Additionally, the State argues that this issue has been waived because the petitioner could
have raised it on direct appeal and did not do so. See Tenn. Code Ann. § 40-30-206(g). On the
other hand, the post-conviction court, following remand from this court for findings of fact and
conclusions of law, concluded that this issue of fatal variance between proof and pleadings was
predetermined on direct appeal. See Tenn. Code Ann. § 40-30-206(h).

         The record indicates that this issue was not addressed on direct appeal, so it is not subject to
waiver as predetermined. The issue was raised in petitioner’s original post-conviction relief petition
in which he argued that defense counsel was ineffective for failing, among other shortcomings, to
raise the issue on direct appeal after the petitioner said that he wanted the issue raised. We conclude
that the issue has not been waived for failure to raise it on direct appeal and will consider petitioner’s
variance issue on the merits.


        3
            (...continued)
                   First Degree murder.— (a) First degree murder is:

                         (1) An intentional, premeditated and deliberate
                             killing of another; or
                         (2) A reckless killing of another committed in
                             the perpetration of, or attempt to perpetrate
                             any first degree murder, arson, rape,
                             robbery, burglary, theft, kidnapping or
                             aircraft piracy; or
                         (3) A reckless killing of another committed as
                             the result of the unlawful throwing, placing
                             or discharging of a destructive device or
                             bomb.
                         (b) A person convicted of first degree murder
                             shall be punished by death or imprisonment
                             for life.

        The State dismissed pretrial the charge of especially aggravated burglary.
        4
         Petitioner claims a violation of his rights under “Article I, §§ 4, 6, 8, 9, and 10 of the
Constitution of Tennessee, and the Fifth, Sixth, and Fourteenth Amendments of the Constitution of
the United States.” Article I, Section 4 of the Constitution of Tennessee states that no political or
religious test shall be required as qualification to any office or public trust under this State; therefore,
this basis for constitutional violation is not applicable in the petitioner’s case.

                                                    -8-
        A variance arises when the proof presented at trial departs from the allegations in the
indictment. State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App.), perm. app. denied, (Tenn.
1994). The most often cited analysis of the law governing variances is found in Berger v. United
States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). The Berger Court stated:

               The general rule that allegations and proof must correspond is based
               upon the obvious requirements (1) that the accused shall be definitely
               informed as to the charges against him, so that he may be enabled to
               present his defense and not be taken by surprise by the evidence
               offered at the trial; and (2) that he may be protected against another
               prosecution for the same offense.

Id. at 82, 55 S. Ct. at 630 (citations omitted). The general rule, nevertheless, is not to be applied so
rigidly that the mere finding of error presumes prejudice. The Court noted that “if, upon an
examination of the entire record, substantial prejudice does not appear, the error must be regarded
as harmless.” Id. at 82, 55 S. Ct. at 631. The Court held that, in the circumstances of the case at
bar, “the variance was not prejudicial and hence not fatal.” Id. at 84, 55 S. Ct. at 631.

       Our supreme court set out the policy on variance to be followed in this state in State v. Moss,
662 S.W.2d 590 (Tenn. 1984). This test, like the test in Berger, looks to the substance of the
variance rather than to any rigid rules of form. The Moss court stated:

               The policy now followed in this and in most other jurisdictions is that
               before a variance will be held to be fatal it must be deemed to be
               material and prejudicial. A variance between an indictment and the
               proof in a criminal case is not material where the allegations and
               proof substantially correspond, the variance is not of a character
               which could have misled the defendant at trial and is not such as to
               deprive the accused of his right to be protected against another
               prosecution for the same offense.

Id. at 592 (emphasis added).

         Our supreme court applied this two-prong test of whether a variance is material and
prejudicial in State v. Mayes, 854 S.W.2d 638 (Tenn. 1993). In that case, the defendant was
convicted of selling a controlled substance. The issue before the court was whether the variance
between the named buyer in the indictment and the buyer identified through proof at trial was fatal.
The court determined first that the variance was not material because the indictment and proof
substantially corresponded. See id. at 640 (citing Berger, 295 U.S. at 82-84, 55 S. Ct. at 631). The
indictment and proof depart and a material variance occurs “only if the prosecutor has attempted to
rely at the trial upon theories and evidence that were not fairly embraced in the allegations made in
the indictment.” Id. (citing Russell v. United States, 369 U.S. 749, 763, 82 S. Ct. 1038, 1046-47,
8 L. Ed. 2d 240 (1962)). The Mayes court concluded that the identity of the buyer was not an

                                                  -9-
element which was alleged in the indictment or proven at trial to support a conviction under the drug
statute, and the variance was, therefore, not material. See id. at 642.

        The Mayes court also determined that the defendant had suffered no prejudice from being
misled or deprived of his right to be protected against further prosecution for the same offense.
Misleading the defendant occurs if the indictment does not sufficiently inform the defendant of the
charges against him so that he may prepare his defense. See Moss, 662 S.W.2d at 592. The court
concluded that the identity of the actual purchaser of the drug served only to describe the offense
charged and formed no part of its required substance. The indictment “correctly identified the
Defendant, the crime alleged, the type of drug sold, and the date and place of the sale. The
Defendant knew he was defending the charge of an unlawful sale under T.C.A. § 39-6-417(a) of a
specified drug at the time and place in question.” Id. As to the issue of double jeopardy, our
supreme court concluded that the defendant “can rely upon the entire record in the event that future
proceedings are taken against him for the same offense. The record leaves no doubt that the
Defendant has been once placed in jeopardy for the sale of the drug at the time and place set forth
in the indictment.” Id.

       Based on these legal authorities, we review petitioner’s charge of fatal variance under the
two-prong test of Moss as follows:

               (1) Is the variance material?

                   (a) Do the allegations in the indictment and proof fail to
                       substantially correspond?

                   (b) Did the prosecutor rely at the trial upon theories and
                       evidence that were not fairly embraced in the
                       allegations in the indictment?

               (2) Is the variance prejudicial to the defendant’s substantial rights?

                   (a) Is the variance such as to mislead the defendant by
                       failing to sufficiently inform the defendant of the
                       charges levied against him so that he cannot
                       adequately prepare for trial?

                   (b) Is the variance such that the defendant is left
                       unprotected from subsequent prosecution on grounds of
                       double jeopardy?

       First, we set out the specific statements made during the course of his trial, which petitioner
argues, together, constitute fatal variance of the felony murder charge:

       (1) In his opening remarks, the prosecutor presented the following theory of the case:

                                                -10-
                    What happened on that night is that Mr. Waller, an opportunist,
                a drifter, found an easy mark in Mr. Jewell. After he got him to the
                Quality Inn he attempted to rob him. He learned that Mr. Jewell lived
                here in Chattanooga at the Beaver Creek Apartments. He determined
                that he could possibly obtain more money by going to the Beaver
                Creek Apartments. He took Mr. Jewell there. He killed him there.
                He stole his property there. He went through Mr. Jewell’s things
                there. He took Mr. Jewell’s car. He fled this jurisdiction. He hid
                from the police and was finally caught in Florida.

         (2) Following the admission of the victim’s briefcase as evidence, the prosecution questioned
Detective Tim Carroll of the Chattanooga Police Department, who was the homicide investigator
for this case, concerning the contents of the victim’s briefcase, which the petitioner testified had been
in the victim’s possession at the Quality Inn and taken back to the victim’s apartment:

                Q. Inside the briefcase, just tell the jury what kind of items that
                   you found.

                A. Got a glasses case contains some glasses.

                Q. Let me ask you. Did you find a wallet?

                A. Yes.

                Q. Did you find items that normally go in a wallet?

                A. Yes, they were outside of the wallet.

                Q. What kind of items are those?

                A. Social security cards, apparently some phone numbers on
                   plastic cards, business cards. Some kind of card entry.

                Q. A parking card – I mean [a] gate card?

                A. Yes, that would be it. Another glass holder, pocket holder.
                   Four audio cassettes, music tapes, a book of matches, comb,
                   pack of Lucky Strikes. Looks like family photographs of a
                   child. Sunglasses, empty or torn Camel pack.

                Q. Torn Camel pack?

                A. Yes, sir. Dupont Credit Union card.


                                                  -11-
               Q. Did you also find Mr. Jewell’s driver’s license?

               A. Yes, I did.

       Later, while cross-examining the petitioner, the prosecutor asked the following question:

               Q. If perhaps you had seen Mr. Jewell’s driver’s license while
                  you were at the Quality Inn and if perhaps you had seen the
                  address of Mr. Jewell which was Beaver Creek apartments,
                  would that have been anything to you?

       (3) During closing argument, Assistant District Attorney Stern argued as follows:

               So you will have the option of deciding based on the facts whether
               either of these two first degree or you’ll be able to choose what you
               believe happened in this case, whether it was an intentional,
               premeditated and deliberate killing of another or was a reckless
               killing committed in the perpetration of, and in this case, robbery and
               kidnapping. Now, I believe that the facts in this case and the facts
               that you heard during this and all of the evidence that have come in,
               could support either of these.

               ....

               I think that really, ladies and gentlemen, that all of this evidence in
               this case shows you that at some point the defendant intended to lure
               Mr. Jewell back to his apartment. He probably somehow found out
               that he lived in the Chattanooga area. Perhaps he looked at his wallet,
               perhaps he was going to rob Mr. Jewell. Pulls out his billfold to rob
               him or when he pulls out his billfold to rob him, he sees he lives at
               Beaver Creek Apartments. And he thinks, whoa. I know where
               Beaver Creek Apartments is, I’m from the Hixson area, I’m from the
               Chattanooga area, we’re going for a ride. He makes Mr. Jewell get
               in the car, he forces Mr. Jewell at gunpoint to the Beaver Creek
               Apartments. He forces Mr. Jewell into the house.

        Petitioner also cites additional statements from closing arguments of the prosecutor including
“[W]hat really happened in this case is the defendant was robbing or intending to rob Mr. Jewell,
force him to his home;” and “[Appellant] forced him to his home when he found out where he
lived;” and “He took Mr. Jewell to his apartment, that’s obvious;” and “There was a traveling from
one point to the other at gunpoint, he had the gun.”

      While we agree with petitioner that the prosecutor misspoke when she said that the jurors
would be able to choose whether the felony murder charge was committed in the perpetration of

                                                -12-
robbery and kidnapping rather than robbery and theft, this does not amount to a material variance
between the charges and the proof at trial. The prosecution clearly did not rely on a kidnapping
theory to build its case of felony murder in the perpetration of robbery and theft. The contents of
the victim’s briefcase were appropriately in evidence, and the State appropriately questioned the
petitioner concerning the possibility that he gained valuable information about the victim from
seeing the victim’s driver’s license. How that information might have been used was not critical to
the State’s case. In fact, in the quotations the from closing argument selected by the petitioner, the
State argued alternatively that the petitioner “lured” the victim back to the Beaver Creek Apartments
and that he “forced” him back. Additionally, during closing argument, the prosecutor stated:

               Now, the defense of course wants you to assume this is for
               homosexual activity. That may be an inference you can draw. But
               I don’t think there’s anybody who’s come in and testified exactly
               what happened. So you can use your common sense, you can make
               a decision about that but what we really know is that somehow they
               came together and they checked into this motel and then they went
               around the corner and no one saw them after that until they got
               somehow to the Beaver Creek Apartments. . .[.]

        Our supreme court has stated: “The purpose of summation is to allow each side ‘to assist the
jury in analyzing, evaluating, and applying the evidence’ and it ‘includes counsel’s right to state his
contention as to the conclusion that the jury should draw from the evidence.’” State v. Cleveland,
959 S.W.2d 548, 551 (Tenn. 1997) (quoting United States v. Garza, 608 F.2d 659, 662 (5th Cir.
1979)). Closing argument is a privilege afforded to the State and the defense, and courts have
generally permitted wide latitude to counsel in arguing their cases to the jury. See State v. Bigbee,
885 S.W.2d 797, 809 (Tenn. 1994). Defense, in closing, noted that there were no witnesses to the
petitioner and victim’s departure from the motel. Defense also characterized the prosecutor’s closing
argument to the jury in the following way:

               [I]f Ms. Stern were the Judge, she would give you two options in this
               case. You can either find him guilty of premeditated murder or you
               can find him guilty of what’s commonly called felony murder or
               murder in the perpetration of a different crime. . . . But there is the
               one option she forgot to mention to you, another option, and that is
               you don’t have to find [him] guilty of either one of those.

How the appellant and the victim got to the Beaver Creek Apartments was a question placed in
controversy. Each side argued its theory. But, kidnapping was not an element of the charged
offense of felony murder in the perpetration of robbery, and theft and was not legally essential to the
charge. Furthermore, the State did not rely on a theory of kidnapping to any significant degree
during the presentation of its case. We conclude that no material variance occurred.

        As to the second prong of the Moss test, the petitioner has failed to show that his substantial
rights have been prejudiced. The indictment, set out in footnote three, clearly put the petitioner on

                                                 -13-
notice that he would be called upon to defend himself on the charge of felony murder based on
robbery and theft and the petitioner was therefore able to prepare a defense without any surprise at
trial. See State v. Clabo, 905 S.W.2d 197 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995)
(concluding that where defendant knew of time period under scrutiny when the State proceeded on
theory that acts of sexual abuse occurred on February 20 and the young victims recalled that the acts
took place around Valentine’s Day, defendant was not surprised and was able to prepare an adequate
defense). Here, the petitioner was not misled such that he was not able to adequately prepare his
defense. The petitioner fully presented his defense, claiming to have been the one kidnapped, who
then killed in self-defense. It was the jury’s prerogative to disbelieve him.

        The petitioner is also protected from being placed twice in jeopardy for the same offense.
It is well settled that jeopardy attaches when the accused is put on trial before a court of competent
jurisdiction, upon an indictment sufficient in form and substance to sustain a conviction and the jury
has been impaneled and sworn. See Etter v. State, 205 S.W.2d 1, 3 (Tenn. 1947). The record shows
that the petitioner has been placed in jeopardy on the theory of felony murder. Mandatory joinder
requires the prosecuting official to join offenses based on the same criminal episode if “such offenses
are known to the appropriate prosecuting official at the time of the return of the indictment . . . and
if they are within the jurisdiction of a single court.” Tenn. R. Crim. P. 8(a). Accordingly, charges
based on the same criminal episode are “ barred from future prosecution if known to the appropriate
prosecuting official at the time that the other prosecution is commenced, but deliberately not
presented to a grand jury.” Id., Advisory Commission Comments. The petitioner, therefore, would
be protected from re-prosecution for felony murder of Howard Jewell.

         We conclude that no material or prejudicial variance occurred, but, even if the prosecutor’s
inadvertent misstatement during closing statement could be construed as material and prejudicial
variance in that her statement referred to robbery and kidnapping as the underlying felonies instead
of robbery and theft, it would be harmless error beyond a reasonable doubt. See State v. Williams,
977 S.W.2d 101, 106 (Tenn. 1998). The weight of proof in this case has already been determined
by this court to be legally sufficient to convict the petitioner of first degree premeditated and
deliberate murder as well as felony murder based on the underlying felonies of robbery and theft.
See State v. Ronald B. Waller, No. 03C01-9212-CR-00429, 1993 WL 398452 (Tenn. Crim. App.,
Knoxville, Oct. 6, 1993), perm. app. denied (Tenn. Feb. 7, 1994); see also State v. Adams, 859
S.W.2d 359, 363 (Tenn. Crim. App. 1992), perm. app. denied (Tenn. 1993) (concluding that
improper consolidation, although error, did not require a new trial because the evidence of guilt
adduced against defendant was abundant and legally sufficient). Considering the record as a whole,
any error in closing argument of the prosecutor “more probably than not” did not affect the result
of this case. See Tenn. R. App. P. 36(b); see also Chapman v. California, 386 U.S. 18, 22, 87 S. Ct.
824, 827, 17 L. Ed. 2d 705 (1967).

        Petitioner argues alternatively that the statements of the prosecution at trial, which we set out
above, have, in effect, so altered the charging terms of the indictment that a constructive amendment
of the indictment has occurred that is prejudicial per se and precludes application of the harmless
error rule. See Stirone v. United States, 361 U.S. 212, 217, 80 S. Ct. 270, 273, 4 L. Ed. 2d 252
(1960) (stating that “a court cannot permit a defendant to be tried on charges that are not made in the

                                                  -14-
indictment against him”).5 Petitioner relies on Watson v. Jago, 558 F.2d 330 (6th Cir. 1977), to
support his argument of constructive amendment. But in Jago, unlike this case, the defendant was
forced to defend against a charge of felony murder, which was not contained in the indictment at all.
Id. at 331. The prosecutor argued in Jago that “premeditated murder and felony-murder were both
first degree murder and that the indictment, by charging first degree murder, did not have to include
a statement that the indictment was for felony-murder for a defendant to be prosecuted on that
charge.” Id. at 332. The Sixth Circuit Court of Appeals held that “[t]o allow the prosecution to
amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not
brought by the grand jury unquestionably constituted a denial of due process by not giving appellant
fair notice of criminal charges to be brought against him.” Id. at 339. No such amendment occurred
here.

        Continuing his contention that a constructive amendment occurred, petitioner additionally
argues that, although the trial court properly instructed the jury as to felony murder based solely on
robbery and theft,6 the arguments of the State opened up a new charge of felony murder based on
kidnapping, and the trial court failed to instruct the jury concerning the weight to be given such
statements of counsel. We disagree. Prior to closing statements, the trial court instructed as follows:

                At this time the attorneys have an opportunity to make their closing
                statements to you. Their statements are typically what the attorneys
                recall that the evidence is or was or what reasonable inferences and
                conclusions they would have you draw from that evidence. You are
                the judges of the evidence. If for any reason, inadvertent or
                otherwise, there should be any difference or discrepancy between the
                statements of the attorneys and the evidence itself, you must in all
                events rely on the evidence itself.

This instruction was in addition to one made by the trial court at the beginning of the trial when it
stated to the jury, “All right, as I indicated to you earlier, the statements of attorneys are not the same
as evidence. You will rely on the evidence itself.”



        5
         Stirone was indicted and convicted in a federal court for unlawfully interfering with
interstate commerce in violation of the Hobbs Act. The defendant was charged specifically with
interference of interstate importation of sand. In reversing the conviction, the Supreme Court held
that “when only one particular kind of commerce is charged to have been burdened a conviction
must rest on that charge.” Id. at 218. In Stirone, the government was permitted, over objection of
the defense, to offer evidence of an interference with steel shipments, and the trial court charged the
jury based on this evidence. Here, the State offered no proof of kidnapping, and the trial court did
not instruct as to that offense.
        6
       We presume that jurors follow the instructions of the trial court. See State v. Cribbs, 967
S.W.2d 773, 784 (Tenn. 1998).

                                                   -15-
       Having determined that neither a fatal variance nor constructive amendment occurred in this
case, we conclude that this issue is without merit.

                                II. Re-Enactment Demonstration

        Petitioner asserts that his constitutional rights were violated when the State, during cross-
examination of the petitioner, compelled the petitioner to step down to the courtroom floor to
demonstrate how he pushed the victim, with the prosecutor taking the role of the victim. Although
he never actually touched the prosecutor, the petitioner argues that he was denied a fair trial in that
he was asked to perform physical acts that unjustly or improperly prejudiced him. The State
contends that the request for demonstration on cross-examination, based on petitioner’s testimony,
was proper. The post-conviction court found that it was proper cross-examination for the prosecutor
to ask petitioner to physically demonstrate his version of the crime.

        Once the petitioner voluntarily chose to take the witness stand, he waived his right against
self-incrimination and became subject to rigorous cross-examination. See Brown v. United States,
356 U.S. 148, 154-56, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958); Gray v. State, 250 S.W.2d 86, 92
(Tenn. 1952) (“It is well settled that when a defendant takes the witness stand in his own behalf he
is subject to the same methods of cross-examination as an ordinary witness.”); Bass v. State, 231
S.W.2d 707, 713 (Tenn. 1950) (stating that when a defendant takes the stand, “all question
concerning his right to protect himself against compulsory inculpation in connection with the crime
under investigation is waived”); Brooks v. State, 213 S.W.2d 7, 10 (Tenn. 1948) (concluding that
when a defendant elects to testify, “he subjects himself to all the rules and tests of credibility, and
may be impeached in the same manner as any other witness”).

        The majority of jurisdictions in this country hold that when a defendant voluntarily becomes
a witness, he may also be properly required to participate in specific physical acts or exhibitions if
relevant to the case.7 Nevertheless, when a criminal defendant chooses to testify, he is still
guaranteed a fair and impartial trial according to both the Sixth Amendment of the U.S. Constitution
and Article I, Section 9 of the Constitution of the State of Tennessee. A defendant who has taken
the witness stand should not be compelled to perform acts which will improperly prejudice him and
thus, as petitioner claims here, deprive him of a fair trial. The Sixth Circuit Court of Appeals has
concluded that “a criminal defendant’s right to a fair trial may be violated if, after taking the stand,
he is forced to perform acts which would unjustly prejudice him.” United States v. Doremus, 414
F.2d 252, 253-54 (6th Cir. 1969) (citing State v. Taylor, 407 P.2d 59, 64 (Ariz. 1965) (holding that
defendant was not humiliated or disgraced by being required to try on hat as means of impeaching
prior testimony of defendant that hat did not belong to him). A defendant would be unjustly


       7
         See, e.g., United States v. Doremus, 414 F.2d 252, 253-54 (6th Cir. 1969); Ziegler v. United
States, 174 F.2d 439 (9th Cir. 1949); Neely v. United States, 2 F.2d 849 (4th Cir. 1924); State v.
Taylor, 407 P.2d 59 (Ariz. 1965); Coats v. State, 45 So.2d 35 (Ala. 1950); Fox v. Commonwealth,
185 S.W.2d 394 (Ky. 1945); State v. Jones, 62 P.2d 44 (Wash. 1936); State v. Heavener, 143 S.E.
674 (S.C. 1928); State v. Oschoa, 242 P. 582 (Nev. 1926).

                                                 -16-
prejudiced where “the requested performance or demonstration would unjustly humiliate or degrade
the defendant or in a case in which such performance would be damaging to the defendant’s image
and irrelevant to the issue on trial.” Doremus, 414 F.2d at 254 (citing State v. Thorne, 117 P. 58,
67 (Utah 1911)).

        In this case, the petitioner voluntarily chose to become a witness in his own behalf and
thereby waived his privilege against self-incrimination. Having done so, he “must respond to all
inquiries pertinent to the issue on trial.” Id. at 253. Petitioner’s offer of personal testimony, deemed
by him competent and material to the issue of self-defense, left him open to be cross-examined as
to any matter material to the case.8

        The petitioner had testified on direct examination that the victim had produced a pistol,
pointed it at the petitioner, and, utilizing the weapon, forced the petitioner to accompany him to the
victim’s apartment. After they entered the apartment, he said that the victim, still with the pistol,
told him to get undressed. The petitioner said that as his pants were halfway to his knees, he pulled
out his pocketknife and raised up quickly. He opened the knife and knocked the pistol out of the
victim’s hands. As he then advanced, holding the knife, toward the victim, the victim grabbed the
petitioner’s hand, folding the blade onto the victim’s finger and cutting it. Subsequently, during
cross-examination, the petitioner was questioned in detail about this confrontation.

        The demonstration that petitioner alleges was unfairly prejudicial to him occurred during
cross-examination concerning the petitioner’s explanation of what transpired as the petitioner and
the victim were inside the victim’s apartment, and the victim held a gun on the petitioner:

                Q. So then you get in the apartment and he again says I just want
                   someone to talk to and then does he change his demeanor or
                   something and say take your clothes off?

                A. He told me I needed to get undressed.

                Q. All right, you need to get undressed. Was he undressed?

                A. No, sir.

                Q. Okay. Where were you standing when he tells you that you
                   need to get undressed?

                A. In front of him -- I don’t know, the set up of this -- he was
                   between me and the door, I remember that.


       8
         See, e.g., Long v. State, 607 S.W.2d 482, 485 (Tenn. Crim. App. 1980) (“Cross-examination
is not limited in Tennessee to subject matter dealt with on direct examination, but rather it extends
to any matters material to the lawsuit.”)

                                                 -17-
Q. You do what, get undressed?

A. No, sir.

Q. Pull your pants down or something, is that what you testified
   to?

A. Partially to my knees.

Q. And then what, you reach into your pocket?

A. Yes, sir.

Q. If you would, could you just step down and demonstrate if
   you will, how close, you know, were you to each other when
   you were doing this, sort of demonstrate to the jury –

MR. COX: Your Honor, if I could have this cleared again. It’s not
loaded. I’m going to be Mr. Jewell.

Q. Now, was it cocked?

A. Not to my knowledge.

Q. Were you looking at it through, I mean you were this close to
   it, weren’t you?

A. I was pretty close.

Q. Now, was he holding it like that?

A. Yes, sir.

Q. He says get undressed. Now what did you do?

A. I pulled my pants down halfway to my knees. I slipped my
   hand in my pocket, pulled my knife out and I come up and
   knocked it out of his hand.

Q. Well, you’re going to have to come this way.

A. Knocked it out of his hands. I’m now sure which way, it fell
   to the floor.


                               -18-
               Q. You knocked it with your right hand?

               A. Yes, sir.

               Q. With the same hand that you had a knife in?

               A. I believe.

               Q. Then what did you do?

               A. I pushed him back.

               Q. How did you push him, just demonstrate on me what you did.

               A. I can’t remember exactly.

               Q. Well, try.

               A. Well, I can’t. I’m sorry.

After the petitioner’s refusal to demonstrate by pushing the prosecutor, defense counsel objected,
and a bench conference was held out of the hearing of the jury:

               MR. HILL: He’s trying to get Mr. Waller to assault him and that’s
               just inappropriate.

               MR. COX: Judge, I’m trying to get him to demonstrate what
               happened, that’s all. As the Court can see, he’s been totally
               uncooperative.

               MR. HILL: He’s cooperated as he possibly can.

               MR. COX: The jury can decide that.

               MR. HILL: Mr. Cox wants him to apparently physically assault Mr.
               Cox so as to inflame the jury a little more I guess, I don’t know.

               THE COURT: No, he’s not going to assault. He can demonstrate or
               show. I think it’s in line, the demonstration is all right.

The record shows that the petitioner continued to voice strong objection to participating in the
demonstration, and the prosecutor moved on to another area of questioning. However, the petitioner
contends that by allowing the prosecutor to ask petitioner to participate in such a demonstration, the
trial court committed prejudicial error.

                                                -19-
      The petitioner also complains of a second “demonstration” which, in fact, was simply cross-
examination as to how he opened the knife while the victim was pointing a pistol at him:

              Q. Did you open it with one hand or did you open it with two
                 hands?

              A. I believe two hands.

              Q. Like this?

              A. I was bent over him.

              Q. Like this? You could demonstrate.

              A. I don’t recall if I opened it with one hand or two hands, okay?

              Q. Can you open it with one hand?

              A. It can be done.

              Q. Can you do it?

              A. It’s been a long time.

              Q. Well, has it been before January the 9th, 1991?

              A. I guess if you don’t do it, it’s not that easy to do.

              Q. No, it doesn’t appear to be that easy. It’s not that easy for me
                 to do.

              A. It’s something –

              Q. Huh?

              A. It takes practice.

              Q. Had you been practicing?

              A. It’s like cutting a deck of cards with one hand. Can you do
                 that?

              Q. I’ll tell you what let’s do. I’ll ask the questions and you
                 answer them if you can. Did you open it with one hand or did

                                               -20-
                   you open it with two?

               A. To the best of –

               MR. HILL: Your Honor, he’s already testified, I think three or four
               times, he doesn’t recall how he opened it.

               THE COURT: We’ll move along.

               Q. I think he does recall. He said two hands, didn’t he?

               A. To the best of my knowledge.

               Q. Now, did Mr. Jewell shoot you?

               A. Do I appear to be shot?

               Q. Did Mr. Jewell shoot you when you opened this knife with
                  two hands.

               A. No, sir, he didn’t.

        It is well within the trial court’s discretion to permit a physical demonstration in the
courtroom. See State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App. 1984). Demonstrative
evidence is admissible only if relevant under Tennessee Rule of Evidence 401. Demonstrative
evidence is presented to assist the trier of fact in understanding and evaluating the other evidence
offered at trial. See Cohen, Sheppeard, and Paine, Tennessee Law of Evidence, § 401.10 (3d ed.
1995). Demonstrative evidence is most often attacked, as petitioner does here, on grounds that it is
too prejudicial under Rule 403. See id. For evidence to be excluded on the grounds of prejudice, its
probative value must be substantially outweighed by the danger of unfair prejudice. See Tenn. R.
Evid. 403.

        An in-court, re-enactment demonstration has been challenged and found appropriate evidence
in a number of jurisdictions. In State v. Thornton, 498 N.W.2d 670 (Iowa 1993), the defendant was
accused of first degree murder and claimed self-defense. On cross-examination, the prosecutor asked
the defendant to step down and show the jury how the “whole incident happened,” with the
prosecutor acting as the victim. Id. at 674. The defendant resisted the demonstration, claiming that
it “occurred so quickly he could not remember exactly how it happened.” Id. Over defense’s
objection, the trial court allowed the demonstration. The prosecutor asked the defendant specifics,
such as where the victim was standing in relation to the defendant; in which hand the victim held
the knife; and where the victim’s hand and the knife where when the defendant fired the gun. The
defendant answered that he could not remember or did not know. The trial court ordered the
defendant to sit down, and the prosecutor continued with cross-examination. Id. The Iowa Supreme
Court concluded that the trial court did not abuse its discretion in allowing the demonstration. Since

                                                -21-
the entire case turned on the defendant’s claim of self-defense, the actions of the defendant and the
victim during the confrontation were vitally important to both the defense and the state’s case.
Additionally, the demonstration bore upon the defendant’s credibility. Id. at 674-75.

        In Sipress v. State, 562 N.E.2d 758, 763 (Ind. 1990), the defendant, having testified, was
appropriately compelled to demonstrate how he spilled a scalding kettle of water onto his three-
month-old daughter. The fact that the defendant was unwilling to participate or uncertain as to what
happened went to his credibility as a witness. Id. at 763. In Price v. State, 570 A.2d 887 (Md.
1990), the defendant, having testified that he shot and killed both his wife and her fifteen-year-old
daughter, argued that he was unfairly prejudiced when the trial court allowed an in-court
demonstration in which the defendant was compelled to hold the gun as he did during the shootings.
Defendant claimed to have been in a “dream-like state” before getting the gun; therefore, the
defendant’s ability to recall how he held the gun was relevant. The trial court did not abuse its
discretion in ordering the defendant to demonstrate how he held the rifle. Id. at 894. In State v. Gil,
543 A.2d 1296 (R.I. 1988), during cross-examination, the defendant was required to “step down
from the witness stand, take hold of his gun, and demonstrate how the shooting had occurred,” with
the prosecutor playing the part of the victim. Id. at 1299. The prosecutor asked the defendant to
show how he removed the gun from his car when the victim approached him; and how he held the
gun when he fired the warning shots. The defendant responded that he did not remember. Defendant
argued on appeal that he was improperly prejudiced by being forced to continue the demonstration
over his repeated claims of lack of memory. The issue in Gil was the defendant’s claim of self-
defense; therefore, “the sequence of events surrounding the shooting was of extreme importance.”
Id. at 1300. The trial court did not abuse its discretion in allowing the demonstration.

         Here, the prosecution sought to discredit the petitioner’s assertion that he killed the victim
in self-defense to fend off a homosexual attack. In order to be relevant, “evidence must tend to prove
a material issue.” Tenn. R. Evid. 401, Advisory Commission Comments. A demonstration that
would show the sequence of events that led to the victim’s death was relevant under Rule 401.
Although the petitioner never touched the prosecutor, petitioner contends that asking that he touch
the prosecutor was unfairly prejudicial to him because he was faced with an unfair dilemma: “Had
the Appellant exhorted [sic] force on the District Attorney, such display would have been inherently
suggestive thereby arousing the feelings of horror and indignation in the jury. However, and because
the appellant refused, the State was able to effectively argue an inference of guilt on those [sic]
basis.” Petitioner describes this as a “foul blow” on the part of the prosecutor. We disagree. Once
the petitioner had become a witness and thereby waived the shelter of constitutional protection
against self-incrimination, he could not choose only to give testimony favorable to him; he was
obliged to answer all pertinent inquiry. We cannot say that the probative value of demonstrations
as to how the petitioner defended himself or opened the knife were substantially outweighed by the
danger of prejudice to him. This issue has no merit.

                              III. Ineffective Assistance of Counsel

       Petitioner argues that he received ineffective assistance of counsel during trial and on direct
appeal. The State asserts that, regardless of the list of alleged instances of defective performance

                                                 -22-
by defense counsel, petitioner has not shown by a preponderance of the evidence that, were it not
for these errors, the result of the trial would have been different. The State points to the
overwhelming evidence of the petitioner’s guilt. The post-conviction court found that the “services
rendered by trial counsel were within the range of competence demanded of attorneys in criminal
cases.” During the January 27, 1997, continued hearing on this post-conviction petition, the post-
conviction court stated:

                Hank Hill is a very able trial lawyer. Whether he likes the defendant
                or not doesn’t make any difference. Mr. Hill wants to win. Mr. Hill
                does everything he can to win a case. In fact, Mr. Hill will skirt as
                close to the line as he can in the defense of any defendant, which he’s
                supposed to do. He doesn’t get over the line but he goes right up to
                it, because he uses all of his knowledge, training and experience to
                seek the acquittal of his client.


The post-conviction court also concluded that, even if services of counsel were beneath this range,
petitioner failed to show how the outcome would have been different given the overwhelming proof
of petitioner’s guilt.

        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),
perm. app. denied (Tenn. 1998) (noting that the same standard for determining ineffective assistance
of counsel that is applied in federal cases also applies in Tennessee). The U.S. 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:

                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 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

                                                  -23-
                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. Petitioner must therefore, establish that “the advice given or the
service rendered was not within the range of competence demanded of attorneys in criminal cases[.]”
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).

        As for the prejudice prong of the test, the Strickland Court stated: “The petitioner 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. Crim. App. 1995) (holding that petitioner failed to establish that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the
proceeding 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 petitioner makes an insufficient showing on one.” Id. at 697, 104
S. Ct. at 2069; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (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).

        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
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.), perm. app. denied (Tenn. 1990).
The reviewing court must indulge a strong presumption that the conduct of counsel falls withing 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.), perm. app. denied (Tenn.1997).

        Finally, a person charged with a criminal offense is not entitled to perfect representation. See


                                                  -24-
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1997).9
This court has noted that “[i]n order to pass constitutional muster, counsel need not discover every
possible item of information before trial, make every possible objection during trial, or use every
trial tactic which petitioner would, in retrospect, now require.” Allen v. State, No. 960, 1991 WL
154520, at *2 (Tenn. Crim. App., Knoxville, Aug. 14, 1991), perm. app. denied (Tenn. Jan. 6, 1992).

        The petitioner alleges some forty-six instances of ineffective assistance of counsel in his
original petition for post-conviction relief. Some of these are restated and elaborated on in his
present appeal. We have painstakingly reviewed each factual allegation, as well as the June 4, 1999,
Findings of Fact and Conclusions of Law submitted by the post-conviction court on remand from
this court. We note that this court should not examine every allegedly deficient act or omission in
isolation, but rather in the context of the case as a whole. See State v. Mitchell, 753 S.W.2d 148,
149 (Tenn. Crim. App.), perm. app. denied (Tenn. 1988). The primary concern of the court should
be the fundamental fairness of the challenged proceeding. See id. In an effort to thoroughly address
each of his allegations, we have organized them into general categories of alleged offenses, and,
with the principles outlined above to guide us, we proceed next to address petitioner’s claim of
ineffective assistance of counsel.

                                  A. Lawyer-Client Relationship

        Petitioner asserts that counsel should have withdrawn because of the failure of their lawyer-
client relationship. Specifically, petitioner points to counsel’s alleged failure to contact petitioner
prior to trial, personal conflicts between the parties, and counsel’s excessive workload. Petitioner
claims that counsel failed to respond to his calls, and when counsel did respond he was abusive,
“cussing out” the petitioner and hanging up on him. This led to what petitioner characterizes as
“major differences” between him and his appointed counsel.

        Counsel testified at the post-conviction hearing that he never refused to consult with
petitioner and never “cussed him out.” Counsel noted that petitioner was difficult to work with, but
counsel also testified that petitioner always wanted him back on the case “once he realized what his
options were.”10 The post-conviction court also stated that, “just from firsthand knowledge obtained


        9
         At his post-conviction hearing, petitioner stated that, had he been able to keep co-counsel
appointed to his case at the time the death penalty was being sought, “[t]hey knowed I would have
walked out that front door with Leroy Phillips if he’d walked in that courtroom with me.” This may
be the standard petitioner wishes to apply in measuring the effectiveness of counsel—walking “out
that front door”—, but it is not the standard compelled by the Constitution.
        10
         Counsel filed a motion to withdraw with this court prior to direct appeal based on “an
intolerable situation,” which we denied, stating that “[a]lthough the relationship is unsatisfactory,
the appellant is not entitled to the counsel of his choice. Moreover, it would be disadvantageous for
new counsel, without the benefit of trying the case, to attempt to file a satisfactory brief by February
                                                                                           (continued...)

                                                  -25-
here today, I realize the difficulty any lawyer would have in representing Mr. Waller.”11 Petitioner
also asserts that counsel was faced with an overwhelming workload and lack of experience,
conditions which we assume caused the petitioner to lose faith in his counsel. The post-conviction
court specifically noted defense counsel’s skill and ability, and nothing in the record indicates that
counsel was anything but fully prepared for trial. Further, petitioner admitted to the post-conviction
court that he did not object to appointed counsel on the day his trial began. Although we agree with
petitioner that his relationship with counsel was far from harmonious, petitioner has failed to show
any instances where the lawyer-client relationship precluded his being effectively represented.

                                  B. Investigation and Preparation

         Petitioner asserts that counsel failed to consult with him in time to locate witnesses helpful
to his case. Petitioner points to two individuals whose testimony would have shown that the
petitioner did in fact earn $150 working on a roofing job during the time he stayed in Cleveland
before leaving for Florida. Petitioner claims that this testimony would have refuted the State’s
theory of robbery and theft. Petitioner also claims that counsel failed to locate witnesses in Florida
whose testimony would have been helpful, although petitioner does not state in what way. Counsel
testified at the post-conviction hearing to the following:

                  A. Both I and the other -- and various investigators, specifically
                     Allan Miller, talked to virtually everybody. Well, I did talk
                     to everybody that testified at the trial. . . . I talked to
                     everybody involved in the case; as a matter of fact, even
                     drove down to Port St. Richey, Florida, to meet with Mr.
                     Waller’s mother and I believe sister; talked to the detectives
                     down there who had - - he’d stolen Mr. Jewell’s car after he
                     killed him, and drove that car down to Florida where it was
                     recovered at his mother’s house. . . .

                  Q. When you got to Florida, were there some witnesses that were
                     missing by that time, some witnesses that you weren’t able to
                     find?



       10
            (...continued)
15.”
       11
          Counsel representing petitioner at the post-conviction hearing stated to the trial court that
“he [petitioner] calls probably -- and he does this on my voice mail as well -- calls, like, every five
minutes all day pretty much, you know, or at least for an hour at a time. He’ll just continually call,
and if I’m not there, the other attorneys won’t accept the collect calls.” We note that petitioner also
sought to fire his post-conviction counsel, stating at the continued hearing on post-conviction relief
that “[s]he’s lied to me. I don’t want her representing me. I can’t trust her.”

                                                  -26-
               A. Not that I’m aware of. . . . The murder took place in
                  Tennessee. The only issues in Florida were maybe for
                  mitigation purposes or in an effort to perhaps suppress some
                  of the evidence that was recovered down there.

        The post-conviction court found that petitioner’s testimony concerning the money he earned
while in Cleveland was corroborated by the testimony of Carlena Stephenson, the friend with whom
he stayed, and was not a disputed fact, making other testimony concerning the job cumulative. The
post-conviction court further found that testimony of witnesses from Florida, for example, a man
with whom petitioner had gone to a bar, was not helpful to his theory of self-defense. Petitioner also
argues that the Coca Cola truck driver with whom the petitioner rode from the first Cleveland exit
to where the victim picked him up should have been called to corroborate petitioner’s testimony,
lending him credibility, and to show that petitioner made “no attempts to rob him, or murder him.”
The post-conviction court found that testimony concerning the petitioner’s ride before encountering
the victim would not have added helpful information. We agree and conclude that counsel’s
decisions concerning these witnesses were within the range of competence demanded of attorneys
in criminal cases.

        Petitioner also argues that counsel failed to file a motion seeking a speedy trial, and that he
failed to consult the petitioner before putting off the trial. Petitioner’s trial began within
approximately sixteen months of his indictment. The post-conviction court found that this period
of time was not necessarily a denial of a speedy trial and stated the following:

               Even though today a case is supposed to be tried within one year,
               supposed to go to trial within six months, but also you have to
               remember that the State gave notice that they were seeking the death
               penalty. Death penalty cases are different from all other cases, and
               you have certain rights in a death penalty case that defendants do not
               have in any other cases. You were entitled to have two attorneys, you
               were entitled to have expert witnesses and all paid for at the expense
               of the State. Your attorneys have to spend more time preparing and
               it takes them longer to prepare.

Counsel testified that the case proceeded to trial as quickly as it was ready to be tried. To have gone
to trial unprepared would have been unreasonable. Here, counsel acted within the range of
competence required. The petitioner has utilized the phrase “speedy trial” to make a complaint
against his trial counsel without even attempting to provide an appropriate analysis of the matter.
State v. Bishop, 493 S.W.2d 81 (Tenn. 1973).

        Petitioner further argues that counsel was ineffective in failing to investigate a relationship
between the victim and Central Baptist Church, a church where the preacher and deacons, according
to petitioner, had been convicted of child molestation. Testimony establishing this relationship,
according to petitioner, would have supported petitioner’s theory that the killing of the victim


                                                 -27-
happened while the petitioner was resisting a homosexual attack.12 Such testimony would not have
been relevant, and counsel acted reasonably and ethically in not knowingly seeking to introduce
inadmissible evidence.




        12
           Petitioner also asserts in his original petition for post-conviction relief that counsel failed
to investigate petitioner’s prior psychiatric treatment while in San Francisco. Petitioner alleges that
this failure to investigate denied petitioner a defense, apparently of mental incompetence. Because
at the continued hearing on his petition, petitioner stated that he did not want counsel to proceed with
that theory and because this allegation is not included in the pro se brief filed with this court, we
consider it waived. We note also that the record shows that petitioner underwent psychiatric
evaluation at the Johnson Mental Health Center in Chattanooga prior to trial and was found
competent to stand trial. Examining physicians also determined that a defense of insanity at the time
of the offense could not be supported.

                                                  -28-
                             C. Control and Direction of Litigation

        Petitioner next asserts that counsel advised petitioner that he did not have any right not to
take the stand, that he had to take the stand and testify. Counsel testified at the post-conviction
hearing to the following:

               Mr. Waller was well aware of his rights to or to not take the stand.
               As a matter of fact, Donna Miller from the public defender’s office
               spent two or three hours with him, I spent a couple hours with him
               explaining exactly what his options were. Mr. Waller was adamant
               that he wanted to testify, and Ms. Miller’s role in that was to prepare
               him to testify.

The post-conviction court found petitioner’s assertion in this regard to be unbelievable. We accept
the determination in this regard of the post-conviction court. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App.), perm. app. denied (Tenn. 1990).

                                         D. Trial Tactics

        The majority of the allegations of ineffective assistance of counsel by petitioner fall within
the broad category of trial tactics. “Strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable . . . .” Burger v. Kemp, 483 U.S.
776, 794, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638 (1987). Petitioner points to each of the following
as instances of ineffective assistance of counsel:

                1.   Failure to move for election of offenses;
                2.   Failure to dismiss a female juror;
                3.   Failure to request jury sequestration;
                4.   Failure to object to prosecution’s opening statement;
                5.   Failure to object to the demonstration;
                6.   Failure to object to constructive amendment of indictment as to
                     burglary, kidnapping, felony murder committed in perpetration
                     of kidnapping, and tampering with and fabricating evidence;
                7.   Failure to object to mandatory rebuttable presumptions;
                8.   Failure to object to hearsay evidence of victim’s doctor;
                9.   Failure to object to “crime scene” and “victim” language;
               10.   Failure to object to prosecutorial misconduct;
               11.   Failure to object to the testimony of Patrolman Longworth of
                     the Port Richie Police Department and Dr. Allen, the victim’s
                     personal physician;
               12.   Failure to put on evidence of petitioner’s good character;
               13.   Failure to impeach Dr. Allen, the victim’s family physician;
               14.   Failure to call a security guard at the Quality Inn Motel as a
                     witness and to call a Motel employee to testify concerning the

                                                -29-
      bathroom setup;
15.   Failure to pursue defense of how victim would act without
      Prozac;
16.   Failure to call an identity expert to discredit the testimony of
      Floyd Fuller;
17.   Failure to challenge admission of photographs, video of crime
      scene, and charts of crime scene as unfairly prejudicial;
18.   Failure to request that the trial court admonish the jury
      concerning statement by prosecutor that the victim’s “head had
      been cut off” in a photograph of the victim’s arms and hands;
      a statement by Dr. King that the victim’s wound was a
      “finishing-off type”; and a statement by the prosecutor
      requesting that the testimony of Carlena Stephenson be struck.
19.   Failure to challenge grand jury proceedings;
20.   Failure to challenge “double jeopardy” where indictment was
      for both premeditated and felony murder;
21.   Failure to cross-examine the victim’s daughter concerning her
      testimony as to the value of the victim’s car and concerning her
      opinion about why her father went to motels;
22.   Failure to create reasonable doubt concerning the money and
      jewelry that petitioner left behind at the victim’s apartment;
23.   Failure to cross-examine the medical examiner concerning the
      possibility that some of the victim’s wounds might have been
      caused by a fall or scraping against the rug;
24.   Failure to call Robert Thompson, the roofing job employer; the
      Coca Cola truck driver, and the victim’s psychiatrist;
25.   Failure to pursue issue of whether petitioner should have been
      charged with one offense against property instead of two, i.e.,
      robbery and theft of car;
26.   Failure to point out to the jury what constituted reasonable
      doubt;
27.   Failure to request instruction on proper use of prior convictions
      testimony and the nonevidentiary nature of attorneys’
      statements;
28.   Failure to take the initiative and make a proper motion or
      directed acquittal on the basis that the overwhelming evidence
      was that the victim was the true perpetrator;
29.   Acting as a third prosecutor by providing evidentiary links to
      the State’s theory;
30.   Bringing out petitioner’s prior convictions on direct
      examination; and
31.   Agreeing to stipulate that no Prozac was detected in the
      victim’s body and then arguing the possible side effects of
      Prozac on the victim.

                                 -30-
Petitioner also alleges instances of ineffective assistance of counsel during the direct appeal process:

                32. Failure to appeal the admissibility of the letter to Carlena
                    Stephenson written from Florida by the petitioner;
                33. Failure to appeal the trial court’s instructions on flight and
                    reasonable doubt;
                34. Failure to raise all issues on appeal that the defendant
                    requested; and
                35. Failure to raise cumulative error, cumulative reasonable doubt,
                    and contamination of the scene on appeal.

        As to item 1, election of offenses, that issue has been resolved adversely in this opinion to
the petitioner. As to items 2 and 3, regarding complaints as to the jury, the post-conviction court
found neither allegation rose to the level of ineffective assistance. We agree. As to item 4 regarding
the prosecutor’s opening statement, we deal with prosecutorial misconduct in Issue VI, but note here
that we agree with trial counsel who testified that he did not think it improper for the state to outline
its theory of the case in opening statements and there was nothing for counsel to object to. As to
item 5 regarding the demonstration, we have dealt with that allegation in Issue II herein. As to item
6, we have dealt with that allegation in Issue I. In both cases, we found no error to which defense
counsel could object.

        As to item 7, the post-conviction court found no mandatory rebuttable presumptions to which
defense counsel could object. We note that the constitutional mandate that the State prove every
element of a crime beyond a reasonable doubt has been interpreted to mean that the State may not
rely on an evidentiary presumption as a way to relieve it from this mandate. See e.g. Sandstrom v.
Montana, 442 U.S. 510, 520-24, 99 S. Ct. 2450, 2458-59, 61 L. Ed. 2d 39 (1979); State v. Sensing,
843 S.W.2d 412, 417 (Tenn. 1992) (cautioning that due process clause of the Fourteenth Amendment
“protects an accused against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged”). This fundamental principle “prohibits
the State from using evidentiary presumptions in a jury charge that have the effect of relieving the
State of its burden of persuasion beyond a reasonable doubt of every essential element of the crime.”
Sensing, 843 S.W.2d at 417. Here, petitioner points to instances that he labels “mandatory rebuttable
presumptions.” Those are: (1) the demonstration using a man the height of the victim to stand next
to the petitioner; (2) the testimony of the victim’s daughter that her father “usually” wore a diamond
ring and a six-year-old photograph showing the victim wearing a diamond ring, which was missing
at the crime scene; (3) the testimony concerning seven missing Prozac pills; and (4) testimony
concerning Xanax pills found with the petitioner in his mother’s Florida home. We agree with the
post-conviction court that there were no “mandatory rebuttable presumptions” in this case. There
were no jury instructions as to either “presumptions”—a term disfavored in criminal cases, other
than the “presumption” of innocence— or “permissive inferences.” Furthermore, this court has
already determined that the State proved every element of the crimes with which the petitioner was
charged, including especially aggravated robbery. Thus, Item 7 is without merit.

        Items 8 through 18 all represent tactical decisions made by counsel during the trial. We will

                                                  -31-
not second guess those decisions. We also find nothing among these allegations that rises to the
level of ineffectiveness. As the post-conviction court noted, “[t]rial counsel presented the best case
he could, going along with petitioner’s insistence that he killed the victim while defending himself
from a homosexual rage.”

        Item 19, regarding grand jury, was determined by the post-conviction court to be without
merit. We agree that there were no grounds for challenging the grand jury proceedings. Item 20,
the claim of double jeopardy, is addressed in Issue IV where we find no error to which defense
counsel could object. Items 21 through 23 fall within the area of strategic and tactical trial decisions
made by defense counsel, in consultation with the client where feasible. Nothing in the record
indicates that counsel handled cross-examination ineffectively, particularly where he was cross-
examining the daughter of the victim, given the facts of this case. Item 24, regarding the alleged
failure to call certain witnesses, was addressed by the post-conviction court, which found that the
testimony of these witnesses would have been irrelevant. We agree.

        Item 25 was addressed by the post-conviction court, which noted that, in spite of petitioner’s
contention that the robbery of items from the victim and the subsequent theft of the victim’s car were
actually one continuous criminal event, the jury was satisfied that two separate crimes had occurred.
This item implicates general double jeopardy considerations, which we address in Issue IV and
conclude that no double jeopardy principles were violated. This item is without merit.

       Item 26, the alleged failure to tell the jury what constituted “reasonable doubt,” was not the
responsibility of defense counsel but of the trial court.

        As to item 27, we agree with petitioner that the trial court should have instructed the jury that
testimony concerning the petitioner’s prior convictions went to his credibility as a witness only.
Defense counsel would have been acting appropriately to have requested such instruction.
Nevertheless, such error is harmless in the context of this case where the State, as far as we are able
to determine, made no mention of petitioner’s former convictions during trial. We have previously
shown that the trial court adequately made the jury aware of the fact that it was to consider only the
evidence, not the statements of the attorneys, in determining guilt.

        As to item 28, we agree with the post-conviction court that defense counsel did not perform
ineffectively by failing to argue for a directed verdict of acquittal because of what the petitioner
describes as “overwhelming evidence that the deceased was the true perpetrator and that the only
evidence against the petitioner was proved by constitutionally defected (sic) presumption.” We
agree that counsel’s motion was within the range of competence demanded of attorneys in criminal
cases under the circumstances of this case.

       As to items 29, claiming that defense counsel acted as a third prosecutor, and 30,
complaining that defense counsel should not have questioned the petitioner during cross-examination
regarding his prior convictions, we agree with the post-conviction court that nothing in the record
indicates that defense counsel failed to perform as an effective advocate for petitioner. Once a
defendant takes the stand, defense counsel typically “take the sting out” of prior convictions by

                                                  -32-
allowing the defendant to place them in the least damaging context prior to being cross-examined
by the State. This was a strategic decision and not an effort by his counsel, as petitioner saw it, to
discredit him.

       Items 31, 32, 33, and 35 all deal with failure to raise certain issues on appeal. Our supreme
court has previously held that there is no constitutional requirement for an attorney to raise every
issue on appeal. See Campbell v. State, 904 S.W.2d 594, 596-97 (Tenn. 1995). These issues are
without merit. As to item 34, that allegation is addressed as petitioner’s Issue VII.

         We have carefully reviewed each allegation of ineffective assistance of counsel in the context
of attorney-client relations, investigation and preparation, control of litigation, and trial tactics,
including appeal. Petitioner’s assertions are either based on misapprehension of the law in
Tennessee or misunderstanding of the function of counsel at trial in making strategic decisions
concerning issues such as when to object, what witnesses to call, whether and how to conduct cross-
examination, what jurors to accept or strike, what trial motions should be made, and what evidence
should be introduced. See American Bar Association Standards relating to the Administration of
Criminal Justice, Standard 4-5.2 (3d ed. 1992). Nothing in the record of this case undermines the
presumption that trial counsel performed within the range of competence required of criminal
attorneys. On the contrary, all the proof in the record demonstrates that trial counsel was an effective
advocate. We conclude that petitioner has failed to meet the requirements of the first prong of the
test of ineffective assistance of counsel, that is, that counsel’s performance was not within the range
of competence required of criminal attorneys.

         Even if petitioner had meet this first prong, as to the second prong of the test, petitioner has
failed to show that any of the alleged deficiencies of counsel were prejudicial in terms of rendering
a reasonable probability that the result of the trial was unreliable or the proceedings fundamentally
unfair. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674
(1984); State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989). The post-conviction court found
the evidence of petitioner’s guilt to be overwhelming. This court held on direct appeal that “under
either theory of first degree premeditated and deliberate murder or of felony murder, the evidence
is sufficient in this case to establish the defendant’s guilt beyond a reasonable doubt of first degree
murder. Additionally, the defendant’s conviction of especially aggravated robbery is supported by
the evidence. . . . Also, regarding the defendant’s theft conviction, the state proved the necessary
elements of that offense.” State v. Ronald B. Waller, No. 03C01-9212-CR-00429, 1993 WL
398452, at *5-6 (Tenn. Crim. App., Knoxville, Oct. 6, 1993), perm. app. denied (Tenn. Feb. 7,
1994). Petitioner has failed to show any prejudice resulting from any claimed deficiency in counsel.
At his continued hearing on his post-conviction petition, petitioner claimed to have “overwhelming
evidence that this is all bogus charges,” yet petitioner has failed to present the testimony of any
uncalled witness, or any evidence that would have made a difference in the ultimate outcome of this
case. We conclude that this issue is without merit.

                                        IV. Double Jeopardy

        Petitioner asserts that his constitutional rights were violated when he was convicted of (1)

                                                  -33-
both premeditated murder and felony murder; and (2) both especially aggravated robbery and theft.

        The double jeopardy clauses of the U.S. Constitution and the Constitution of Tennessee both
state that no person shall be twice put in jeopardy for the same offense. The U.S. Supreme Court
has defined the double jeopardy clause as affording a defendant three basic protections: “It protects
against a second prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple punishments for
the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d
656 (1969). In this case, petitioner’s issue falls within the third category, protection against multiple
punishments for the “same” offense. In Tennessee, determining whether two offenses are the “same”
for purposes of double jeopardy requires a “close and careful analysis of the offenses involved, the
statutory definitions of the crimes, the legislative intent and the particular facts and circumstances.”
State v. Black, 524 S.W.2d 913, 919 (Tenn. 1975). In Black, our supreme court applied the
Blockburger test13 and found that armed robbery and assault with intent to commit murder in the
second degree were not identical offenses. See id. at 920. This test still provides us with an initial
means for determining whether two offenses are the same for purposes of double jeopardy. Our
supreme court has elaborated on Blockburger and other case law to articulate the correct analysis for
determining a double jeopardy punishment issue:

                (1) a Blockburger analysis of the statutory offenses; (2) an analysis,
                guided by the principles of Duchac, of the evidence used to prove the
                offenses; (3) a consideration of whether there were multiple victims
                or discrete acts; and (4) a comparison of the purposes of the
                respective statutes. None of these steps is determinative; rather the
                results of each must be weighed and considered in relation to each
                other.

State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996).

        Petitioner alleges first that he was unconstitutionally convicted of both premeditated murder
and felony murder. He further alleges that nothing in the record indicates that the punishments were
merged and that even if the punishments were merged, such merger, announced by this court in State
v. Zirkle, 910 S.W.2d 874 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995), violates the
Supremacy Clause of the U.S. Constitution.

       In State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), the trial judge had imposed a sentence of
twelve years for armed robbery and two death sentences, one for premeditated murder and one for
felony murder. Our supreme court determined that both premeditated murder and felony murder


        13
          “Where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one is whether
each provision requires proof of an additional fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932).

                                                  -34-
constitute first degree murder; the crimes are alternate means by which the offense of first degree
murder can be committed. See id. at 70. Where there is only one first degree murder, there can be
only one punishment. See id. However, the Hurley court cured the problem of double jeopardy
punishment by vacating the conviction for felony murder. See id.

        Hurley was cited by this court in Zirkle, where the defendant was convicted of premeditated
murder, felony murder, and especially aggravated robbery. The trial court merged the two murder
convictions into a single conviction for first degree murder and modified the sentence to a single life
term to be served consecutively to the especially aggravated robbery sentence. Our supreme court
concluded that the defendant was not subjected to double jeopardy. See id. at 889.

        As in Zirkle, the jury in this case returned separate guilty verdicts for both premeditated
murder and felony murder, indicating its determination that the proof supported a conviction for
either offense. Petitioner asserts that the trial court in his case failed to merge the crimes. We
disagree. The trial court instructed the jury as to Indictment No. 186378 for first degree murder in
the following way:

                      When you consider your verdict as to indictment number
               186378, in which the defendant is charged with murder, you will first
               determine whether you find the defendant guilty beyond a reasonable
               doubt of the offense of murder in the first degree as that offense has
               been defined herein.
                      a) You will separately consider the charge of murder in the first
               degree in Count I, that is, the charge that the defendant unlawfully,
               intentionally, deliberately, and with premeditation murdered the
               alleged victim. You will state as a part of your verdict whether you
               find the defendant guilty under Count I.
                      b) You will separately consider the charge of murder in the first
               degree in Count II, that is, the charge that the killing of the alleged
               victim was unlawfully and recklessly committed during the
               perpetration of, or attempt to perpetrate, a robbery and theft. You
               will state as a part of your verdict, whether you find the defendant
               guilty under Count II.
                      The jury may find the defendant guilty under both Count I and
               Count II, or under either one of the counts, or may find the defendant
               not guilty under both counts.
                      If you find the defendant guilty of murder in the first degree,
               under either count of the indictment, you will then fix the punishment
               at life imprisonment and report that as a part of your verdict.

Later, in polling the jury, the trial court stated: “All right, members of the jury, you heard that
announcement. Is it your verdict also that the defendant be sentenced to life imprisonment as a result
of the verdict of murder in the first degree?” In pronouncing sentence, the trial court stated:


                                                 -35-
               Ronald B. Waller, on the verdict of the jury finding you guilty of
               murder in the first degree under Count I and Count II of the
               indictment, that is, premeditated murder and killing in the
               perpetration of a crime, robbery, and fixing punishment at life
               imprisonment, it’s the judgment of the Court that you are guilty of
               that offense and you are sentenced to life imprisonment for murder in
               the first degree.

The record is clear on this issue. The petitioner was never subjected to double jeopardy multiple
punishments as a result of being found guilty of both premeditated and felony murder. He was
convicted of first degree murder and sentenced to life in prison.

       Petitioner relies on two Sixth Circuit cases, Pryor v. Rose, 724 F.2d 525 (6th Cir. 1984), and
Blake v. Morford, 563 F.2d 248 (6th Cir. 1977), for the proposition that the United States Court of
Appeals for the Sixth Circuit has held that convictions for both felony murder and premeditated
murder are violative of the Double Jeopardy Clause. Neither case stands for such a holding.14

        Secondly, petitioner asserts that he was subjected to double jeopardy when he was convicted
of and received punishment for both especially aggravated robbery and theft. This court has
previously affirmed both convictions. We find nothing in the test outlined by our supreme court in
State v. Denton to persuade us now that petitioner is being unconstitutionally punished for the same
criminal transaction. Petitioner’s double jeopardy issues are without merit.




       14
          Blake dealt with a Tennessee murder indictment stated in common law form and upheld
appellant’s conviction. See Blake, 563 F.2d at 252. Pryor dealt with an earlier version of Tennessee’s
first degree murder statute, Tennessee Code Annotated § 39-2402 and held that where there was a
variance between the indictment and the jury instructions, the appellant was subjected to double
jeopardy. See Pryor, 724 F.2d at 531. Neither case supports petitioner’s arguments here, and
petitioner’s assertion that these cases have established federal law which prohibits merger of
convictions for premeditated murder and felony murder into one conviction for first degree murder
under Tennessee Code Annotated § 39-13-202 is without legal basis.

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                                       V. Evidentiary Rulings

        Petitioner alleges errors of evidentiary rulings on the part of the trial court. Specifically
petitioner argues that his constitutional rights were violated when the trial court: (1) failed to exclude
autopsy photographs of the victim, as well as other photographs, on the grounds of unfair prejudice;
(2) improperly admitted evidence of petitioner’s letter to Carlena Thompson written two days after
the murder; and (3) permitted expert testimony concerning the redness of the petitioner’s knuckles
as shown in a photograph taken nine days after the murder. The post-conviction court determined
that the trial court correctly ruled that the probative value of the autopsy photographs and other
photographs substantially outweighed prejudicial effect; that the entire letter to Carlena Thompson
was highly relevant; and that Dr. King’s testimony concerning his opinion that the injuries to the
petitioner’s knuckles appeared to be consistent with an offensive action was appropriate. We agree
with the post-conviction court. The State had to prove intent, premeditation and deliberation to
warrant a conviction for first degree murder under Count I of the indictment, for which this evidence
was relevant. This issue is without merit.

                                   VI. Prosecutorial Misconduct

       Petitioner claims fifteen instances, many with sub-issues, of prosecutorial misconduct in his
original petition for post-conviction relief. These instances are as follows:

                1.    Impermissible amendment to the indictment implicating
                      principles of double jeopardy;
                2.    Pyramiding of offenses;
                3.    Subornation of perjury in testimony of Floyd Fuller;
                4.    Improper shifting of burden though use of mandatory rebuttable
                      presumptions;
                5.    Improper participation in demonstrations resulting in denial of
                      confrontation rights;
                6.    Intentional and prejudicial references to malice;
                7.    Prejudicial opening statement;
                8.    Improper attack on petitioner’s character;
                9.    Improper statement that added to prosecutor’s official position
                      (“I was in the Army”);
                10.   Brandishing handgun;
                11.   Improper cross-examination;
                12.   Improper comments and questions;
                13.   Intentional delay;
                14.   Prejudicial closing argument; and
                15.   Misconduct amounting to cumulative error.

We have already addressed item 1 and item 4, concluding no error occurred; therefore, no
prosecutorial misconduct occurred. As to item 2, any allegation of pyramiding of offenses is moot.
This court has already affirmed all convictions. As to item 3, petitioner alleges that the testimony

                                                  -37-
of Floyd Fuller was fabricated. Fuller testified as to what he saw from his window, that is, a taller
man tugging and pulling a shorter man back towards the building. We agree with the post-
conviction court that there is no evidence of any perjury on the part of Floyd Fuller.

        Item 5 involves the prosecutor’s participation in two re-enactment demonstrations. One
involved the petitioner’s showing how he opened his knife with one hand and the other showing how
petitioner pushed the victim away. We have already determined that to request a re-enactment of
the struggle between the victim and the petitioner was proper cross-examination. The demonstration
with the knife was also proper cross-examination. The fact that the prosecutor commented that he
also found opening the knife with one hand difficult did not rise to the level of his becoming a
witness for the State. The petitioner was not denied confrontation rights.

        As to items 6 through 12, and item 14, we agree with the post-conviction court that no error
of any consequence occurred.

         Petitioner asserts in item 13, that by filing Intent to Seek Death Penalty and failure to comply
with discovery were intentional delays for the purpose of prejudicing the petitioner. We agree with
the post-conviction court that no prejudicial delay occurred in this case. This issue was also
addressed as one of petitioner’s allegations of ineffective assistance of counsel. Defense counsel
testified that the case proceeded to trial as soon as it was ready to be tried.

        Having found no instances of prosecutorial misconduct we conclude that petitioner’s final
item citing cumulative error is without merit.

                                      VII. Cumulative Errors

        We have carefully examined each of petitioner’s many allegations of error, which he now
asserts denied him of his constitutional right to a fair trial. Having found no prejudicial error, we
conclude that this issue fails.

                            VIII. Fundamental Miscarriage of Justice

        A miscarriage of justice in the context of reversible, constitutional error means a reasonable
probability of a more favorable outcome for the accused. See People v. Lopez, 251 Cal. App. 2d 918
(Ct. App. 1967). A miscarriage of justice such as to warrant reversal should be declared only when
the court, having examined the entire record, is of the opinion that it is reasonably probable that a
result more favorable to the defendant would have been reached were it not for the errors. See
People v. Bernhardt, 222 Cal. App. 2d 567 (Ct. App. 1963). The U.S. Supreme Court has
characterized petitioner’s last issue as a “narrow miscarriage of justice exception” and one that is
demonstrated when the accused can show that the violations “caused the conviction of an innocent
person.” McCleskey v. Zant, 499 U.S. 467, 469, 111 S. Ct. 1454, 1457, 113 L. Ed. 2d 517 (1991).
We have concluded that no constitutional errors occurred in this case to invoke the “miscarriage of
justice” exception.


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                                     CONCLUSION

        Based on our exhaustive review, the judgment of the post-conviction court dismissing
petitioner’s post-conviction relief petition is hereby affirmed.




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