         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 19, 2003 Session

    TERRANCE L. TURNER AND JERMAINE MONTEZ BRADFORD v.
                    STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 97-A-49    Seth Norman, Judge



                     No. M2002-02429-CCA-R3-PC - Filed March 25, 2004


Petitioner Terrance L. Turner was convicted in the Davidson County Criminal Court of two counts
of attempted second degree murder and one count of especially aggravated kidnapping. Turner
received a total effective sentence of twenty-eight years incarceration in the Tennessee Department
of Correction. Subsequently, Turner filed for post-conviction relief, alleging that he received the
ineffective assistance of counsel. Petitioner Jermaine Montez Bradford was convicted of especially
aggravated kidnapping and was sentenced to twenty-three years incarceration. Thereafter, Bradford
filed for post-conviction relief, alleging that he received the ineffective assistance of counsel because
counsel denied him the right to testify at trial. The post-conviction court denied both petitions and
the petitioners timely appealed. Upon our review of the record and the parties’ briefs, we affirm the
judgments of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
THOMAS T. WOODALL, J., joined.

David R. Heroux, Nashville, Tennessee, for the appellant, Terrance L. Turner.

Larry B. Felts, Nashville, Tennessee, for the appellant, Jermaine Montez Bradford.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Carlton Drumwright, III, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                   OPINION

                                           I. Factual Background

                                                    A. Trial

       This court previously summarized the facts underlying the petitioners’ convictions for
especially aggravated kidnapping on direct appeal as follows:1

                         Misty Perry testified that she went to the Main Street Market
                 in East Nashville on July 23, 1996. Perry saw Bradford while she
                 was in the market, but he did not say anything to her. When Perry
                 went outside, she was approached by Turner, who asked her whether
                 she would like to purchase some marijuana. When Perry responded
                 that she would, Turner then pointed at the street and stated that the
                 marijuana was “over there.” At this point, Perry entered her vehicle
                 and sat in the driver’s seat and Turner entered the vehicle and sat in
                 the passenger seat. Turner then stated that they needed to wait for his
                 friend to come out of the market.

                         Perry testified that after Bradford came out of the market, he
                 entered her vehicle and sat directly behind her. Turner then instructed
                 Perry to drive onto the road and turn right. After Perry followed this
                 instruction, Turner pulled out a gun, held it against Perry’s leg, and
                 demanded that she give him her money. When Perry denied that she
                 had any money, Turner stated that he had seen her put money in her
                 pocket. At this point, Turner pointed the gun at Perry’s head and
                 asked Bradford whether he should shoot Perry in the head or in the
                 leg. Bradford then replied, “Go ahead and shoot her.” After this
                 comment, Turner put the gun against Perry’s leg and instructed her to
                 drive down a side street.

                          Perry testified that when Turner told her to turn down a side
                 street, she became frightened about what might happen to her, so she
                 pulled into the parking lot of a ParMart and jumped out of the moving
                 vehicle. Perry then ran into the store, looked back outside through the
                 glass doors, and saw Turner get into the driver’s seat of the vehicle
                 and drive away. The cashier in the store then told Perry that he had
                 called the police.



        1
          Turner’s complaints on post-conviction relate only to his conviction for especially aggravated kidnapping.
Accordingly, our recitation of the facts relates solely to that conviction.

                                                        -2-
State v. Turner, 41 S.W.3d 663, 668-69 (Tenn. Crim. App. 2000). This court affirmed the judgments
of the trial court on direct appeal. Id.

                                          B. Post-Conviction

                                          1. Petitioner Turner

         Subsequent to his convictions, Turner filed for post-conviction relief, raising eight allegations
of ineffective assistance of counsel. Specifically, Turner contended that counsel was ineffective by
failing to:

                A. Object to the trial court’s failure to instruct the jury as to the
                less[e]r-included offenses applicable to the charge of Especially
                Aggravated Kidnapping.

                B. Object to the trial court’s failure to properly instruct the jury as to
                the “deadly weapon” element of the crime of Especially Aggravated
                Kidnapping.

                C. Move for a new trial based on the trial court’s failure to instruct
                the jury as to the less[e]r-included offenses applicable to the charge
                of Especially Aggravated Kidnapping.

                D. Move for a new trial based upon the trial court’s failure to
                properly instruct the jury as to the “deadly weapon” element of the
                crime of Especially Aggravated Kidnapping.

                E. Preserve for appellate review the issue of the trial court’s failure
                to instruct the jury as to the less[e]r-included offenses applicable to
                the charge of Especially Aggravated Kidnapping.

                F. Preserve for appellate review the issue of the trial court’s failure
                to properly instruct the jury as to the “deadly weapon” element of the
                crime of Especially Aggravated Kidnapping.

                G. Adequately investigate the testimony that [Turner] wished to
                present at trial and advised [him] not to testify.

                H. Timely convey plea bargain offers to [Turner].

        Turner testified at his post-conviction hearing that he was seventeen years old at the time of
the offenses and nineteen years old at the time of trial. Turner stated that he wanted to testify at trial,
but he declined to do so on the advice of counsel. Turner maintained that if he had testified he would


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have explained that “[t]he whole thing was drug related.” He would also have explained that he did
not point a gun at the victim but merely “displayed” the weapon.

        Turner’s trial counsel also testified at the post-conviction hearing. Counsel testified that he
informed Turner that he had the right to testify. However, counsel believed that doing so was ill-
advised because the testimony of the other witnesses was “totally at variance with [Turner’s] version
of the facts.”

        Counsel acknowledged that Turner had been indicted on two counts of attempted first degree
murder and one count of especially aggravated kidnapping.2 Counsel testified that he had considered
the issue of lesser-included offenses prior to trial and during trial. He ultimately requested that the
trial court charge the jury on attempted second degree murder and reckless endangerment as lesser-
included offenses of both counts of attempted first degree murder. The trial court refused to charge
reckless endangerment but agreed to charge attempted second degree murder. Turner was found
guilty of attempted second degree murder on both counts.

        Counsel admitted that he did not request a charge on aggravated kidnapping as a lesser-
included offense of especially aggravated kidnapping. He believed that Turner would be convicted
of the charged offense or found not guilty; he did not believe the jury would find Turner guilty of
a lesser-included offense. Counsel maintained that the jury’s decision depended on whether they
believed Perry. Counsel stated, “I don’t think there were degrees of believing her. I think she was
pretty certain on what she said happened.”

       Counsel conceded that he was not aware that the trial court was required to charge a lesser-
included offense if “there is testimony to support a jury finding of guilt on that charge.” He also
conceded that he did not raise the issue of lesser-included offense instructions in Turner’s motion
for new trial or his direct appeal.

        Finally, counsel testified that he listened to the jury instructions as the trial court charged the
jury, but he did not peruse the written jury instructions. As such, he did not notice that in the charge
of especially aggravated kidnapping, the definition of “deadly weapon” included the term “forearm”
instead of the correct term “firearm.”

        The post-conviction court denied Turner’s petition, finding that “[a]s to petitioner’s claims
regarding jury instruction failure, those issues were not brought up on appeal and will be considered
as having been waived and therefore, are not eligible for review under [Tennessee Code Annotated
section] 40-35-206(g).” The post-conviction court found that Turner decided not to testify based
upon the advice of counsel which was based upon sound trial strategy. Additionally, the post-
conviction court noted that Turner did not present any proof supporting his claim that counsel failed
to convey plea offers and determined that this complaint was “unfounded.”


            2
                Turner was also indicted for aggravated robbery and carjacking, but the jury found him not guilty of those
offenses.

                                                             -4-
        On appeal, Turner argues that the post-conviction court erred in finding that the issues
regarding the jury instructions had been waived. He maintains that the matter should be remanded
to the post-conviction court “for further consideration of all claims raised with the requirement that
the court provide in writing its . . . finding of fact and conclusion of law.” In the alternative, Turner
contends that the post-conviction court should have determined that counsel was ineffective.

                                        2. Petitioner Bradford

        Subsequent to his conviction, Bradford filed for post-conviction relief, alleging that counsel
denied him the right to testify at his trial. At the post-conviction hearing, Bradford testified that he
was fifteen years old at the time of the offense and was seventeen years old at the time of trial.
Bradford’s family hired counsel to represent him at trial. Counsel met with him “quite frequently”
prior to trial. Bradford repeatedly told counsel that he wished to testify at trial; however, counsel
told him that he “wasn’t going to testify.”

        Bradford asserted that counsel did not explain that he had a constitutional right to testify.
He maintained that his testimony would have been helpful and would “have been contrary to the
evidence that was set forth . . . by the State.” Bradford admitted that he did not complain at trial that
counsel had denied him the opportunity to testify. Bradford maintained that at the time of trial he
was not aware that he had a right to testify. However, he explained that “over the course of time as
I turned 18, I was took off lock down, so I got more access to the law library.” He “studied a few
law books” and became aware that he had the right to testify at trial.

        Next, Bradford’s trial counsel testified at the post-conviction hearing. Counsel stated that
he discussed with Bradford “all the ramifications, whether it was a good idea for him to testify or
whether it was not a good idea.” Counsel believed that Bradford’s testimony would not be
beneficial, and he was particularly concerned about Bradford’s potential behavior on the stand.
Specifically, counsel explained, “He had been locked up since he was 15 and he had been in
segregation over there at the jailhouse. And I mean, he was a real angry young man. I was just
afraid that he would explode [on the stand].”

       Counsel testified that he advised Bradford that he had the right to testify, but he cautioned
Bradford that he did not believe that it would be advisable. Counsel maintained, “If he would have
been just out right adamant about it, I would have had no choice [but to let him testify].” Based upon
counsel’s advice and trial strategy, Bradford ultimately decided not to testify.

        After considering the foregoing testimony, the post-conviction court denied Bradford’s
petition for post-conviction relief. The post-conviction court found that

                [c]onsidering the youth and alleged anger of the petitioner, having the
                petitioner remain silent does not seem an unreasonable tactic on
                behalf of the defense. . . . [T]he petitioner did, in fact, knowingly and



                                                  -5-
                 intelligently waive his right to testify by coalescing and remaining
                 silent at the trial in reliance upon counsel’s strategic course of action.

Finally, the post-conviction court stated, “The petitioner testified at the post-conviction hearing that
had he testified at trial, the jury would have acquitted him, but offered no support for this theory.
It is hard to envision how the outcome would have been different merely based on conjecture alone.”
On appeal, Bradford contends that the post-conviction court’s ruling was error.

                                                  II. Analysis

         To be successful in a claim for post-conviction relief, a petitioner must prove all factual
allegations contained in his or her post-conviction petition by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-210(f) (1997).3 “‘Clear and convincing evidence means evidence in which
there is no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses,
the weight and value to be accorded their testimony, and the factual questions raised by the evidence
adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings
of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing
that the evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        “To establish ineffective assistance of counsel, [a] petitioner bears the burden of proving both
that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984)). In evaluating whether a petitioner has met this burden, this court must
determine whether counsel’s performance was within the range of competence required of attorneys
in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

                                             A. Petitioner Turner

       On appeal, Turner contends that the post-conviction court “failed to consider all of the claims
in support of [his] contention that he did not receive effective assistance of trial counsel or did not
express its findings of fact and conclusions of law in writing or orally from the bench.” Further,


        3
           Since the post-conviction hearing in the instant case, this provision has been codified at Tennessee Code
Annotated section 40-30-110(f) (2003).

                                                        -6-
Turner argues that the evidence adduced at trial could have supported an instruction on lesser-
included offenses of especially aggravated kidnapping, namely aggravated kidnapping. Finally,
Turner complains that the definition of deadly weapon in the instruction on especially aggravated
kidnapping was faulty in that the word “forearm” was used instead of “firearm.”

        Regarding any lesser-included offense instructions, our supreme court has noted that “[t]he
trial court’s duty to charge juries as to the law of each offense included in an indictment applies
whether or not a defendant requests such an instruction.” State v. Wilson, 92 S.W.3d 391, 394
(Tenn. 2002); see also Tenn. Code Ann. § 40-18-110(a) (1997); Yasmond Fenderson v. State, No.
E2001-01088-CCA-R3-PC, 2002 WL 832205, at *5 (Tenn. Crim. App. at Knoxville, May 2, 2002),
perm. to appeal denied, (Tenn. 2002). Based upon the trial court’s duty to instruct the jury regardless
of counsel’s request, this court has previously declined to find that counsel was ineffective for failing
to pursue lesser-included offense instructions at trial. See Terry David Stephens v. State, No.
M2001-01036-CCA-R3-PC, 2002 WL 31890860, at *7 (Tenn. Crim. App. at Nashville, Dec. 30,
2002), perm. to appeal denied, (Tenn. 2003). Accordingly, we conclude that Turner failed to
establish the ineffective assistance of counsel in this regard.

        Turner’s complaints regarding the failure of counsel to raise the issue in his motion for new
trial and on appeal require a different analysis. Recently, in Jerry Neal Carpenter v. State, No.
E2001-01732-SC-R11-PC, 2004 WL 51818, at *5 (Tenn. at Knoxville, Jan. 13, 2004) (publication
pending), our supreme court set forth a “non-exhaustive list” of factors which “is useful in
determining whether an attorney on direct appeal performed reasonably competently in a case in
which counsel has failed to raise an issue.” Turner presented absolutely no proof on this issue at the
post-conviction hearing. See Joseph D. Taylor v. State, No. M2003-00138-CCA-R3-PC, 2004 WL
350641, at *7 (Tenn. Crim. App. at Nashville, Feb. 20, 2004). Accordingly, he has failed to meet
his burden of establishing by clear and convincing evidence the ineffective assistance of counsel on
appeal.

       Finally, Turner complains of counsel’s failure to object to or appeal the trial court’s definition
of especially aggravated kidnapping. The written instructions to the jury regarding the offense of
especially aggravated kidnapping provided:

                A “deadly weapon” is a forearm or anything manifestly designed,
                made or adapted for the purpose of inflicting death, or serious bodily
                injury or anything that in the manner of its use or intended use is
                capable of causing death or serious bodily injury.

Turner contends that the term “forearm” was incorrectly substituted for the term “firearm.”

         We have previously noted that “[w]e must review the entire [jury] charge and only invalidate
it if, when read as a whole, it fails to fairly submit the legal issues or misleads the jury as to the
applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). After our
examination of the complete written jury instructions, we note that “deadly weapon” was defined


                                                  -7-
a total of three times. The foregoing instruction was the only incorrect instruction and is clearly a
typographical error. In the two remaining instructions, the definition used the correct term “firearm.”
Thus, we conclude that Turner failed to establish that he was prejudiced by counsel’s failure to raise
the issue. This issue is without merit.

                                        B. Petitioner Bradford

        Bradford’s sole complaint on appeal is that his counsel was ineffective in refusing to allow
him to testify at trial. It is unquestionable that a criminal defendant has a fundamental, constitutional
right to testify at trial. See Momon v. State, 18 S.W.3d 152, 161 (Tenn. 1999). This fundamental
right may only be waived by the defendant himself. Id. “Generally, a right that is fundamental and
personal to the defendant may only be waived if there is evidence in the record demonstrating ‘an
intentional relinquishment or abandonment of a known right or privilege.’” Id. at 161-62. Such
waiver may not be presumed by a silent record. Id. at 162.

        In Momon, our supreme court outlined procedural safeguards to be employed by the trial
court to ensure that a defendant’s knowing, voluntary, and intelligent waiver of the right to testify
would be reflected on the record. Id. However, because Momon served only to clarify the existing
law, “the mere failure to follow these guidelines will not in and of itself support a claim for
deprivation of the constitutional right to testify if there is evidence in the record to establish that the
right was otherwise personally waived by the defendant.” Id. at 163. Our supreme court cautioned
that “neither the right to testify discussed [in Momon], nor the procedural protections adopted to
preserve that right are new constitutional rules which must be retroactively applied.” Id. at 162-63.

        Bradford’s trial was held on August 26, 1998, over one year prior to the filing of the Momon
decision. Therefore, the failure of counsel to utilize the “prophylactic measures” outlined in Momon,
namely having Bradford waive his right to testify on the record, is not determinative of the issue.
This court has previously observed that “[p]rior to the supreme court’s holding in Momon, a
petitioner’s claim that his counsel prevented him from testifying in his own behalf was treated like
any other ground asserted for a claim of ineffective assistance of counsel.” Allen Dale Cutshaw v.
State, No. E2002-00438-CCA-R3-PC, 2003 WL 147025, at *7 (Tenn. Crim. App. at Knoxville, Jan.
22, 2003), perm. to appeal denied, (Tenn. 2003); see also William Brian Belser v. State, No. E2001-
01541-CCA-R3-CD, 2002 WL 1465918, at *4 (Tenn. Crim. App. at Knoxville, July 9, 2002), perm.
to appeal denied, (Tenn. 2002).

        At the post-conviction hearing, counsel maintained that Bradford waived his right to testify
in accordance with trial strategy. Regardless, counsel stated that if Bradford had insisted, counsel
would not have impeded his right to testify. In its order denying relief, the post-conviction court
implicitly accredited the testimony of counsel. Additionally, the post-conviction court stated, “The
petitioner testified at the post-conviction hearing that had he testified at trial, the jury would have
acquitted him, but offered no support for this theory. It is hard to envision how the outcome would
have been different merely based on conjecture alone.” We conclude that the evidence at the post-
conviction hearing does not preponderate against the findings of the post-conviction court.


                                                   -8-
                                 III. Conclusion

In sum, we affirm the judgments of the post-conviction court as to both petitioners.


                                              ___________________________________
                                              NORMA McGEE OGLE, JUDGE




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