         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     March 28, 2006 Session

               WILLIAM B. THURLBY v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Sevier County
                            No. 2000-940   Rex Henry Ogle, Judge



                       No. E2005-00648-CCA-R3-PC - Filed July 10, 2006


The petitioner, William B. Thurlby, appeals the dismissal of his petition for post-conviction relief,
arguing ineffective assistance of both pre-arrest and trial counsel, the State withheld evidence and
failed to make an election of offenses, his due process rights were violated, and the cumulative effect
of the various errors resulted in the denial of his right to a fair trial. Following our review, we affirm
the dismissal of the petition for post-conviction relief.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C. MCLIN ,
JJ., joined.

Paul G. Whetstone, Mosheim, Tennessee, for the appellant, William B. Thurlby.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

                                                FACTS

        The facts in this matter were set out in the direct appeal:

                Jeff McCarter testified that he is a detective with the Sevier County Sheriff's
        Department. He said he was dispatched to the victim's apartment on the evening of
        Sunday, January 21, 1996. He said he found the victim's body lying on its back in
        the floor of the living room. He said he made a videotape of the scene, and the
        videotape was played for the jury while Detective McCarter explained what he saw.
        He said the victim had silver duct tape around his ankles and was wearing sweat
        pants. He said that from the waist up, the victim was covered by a large, white linen
bag. He said the bag was later removed, revealing that the victim's hands were bound
by duct tape across the chest, with one arm lying over the other. He said there was
a jagged tear or cut in the bag on the opposite side from the victim's face.

        Detective McCarter said that each of the victim's legs was individually taped
and then taped together. He said the victim's clothes were pulled around his waist,
indicating that the victim had been dragged backwards with his feet toward the door.
He said the victim's button-up shirt and T-shirt were bundled underneath him. He
said the victim's hands were tightly bound, and each arm was bound individually and
then together. He said the victim had relatively fresh wounds on his knuckles and
hands, abrasions on his nose and face, and a wound or scratch on the left side of his
abdomen. He said there was a clump of hair near the victim, and blood was on a
shirt.

         Detective McCarter testified that his first contact with the defendant was on
the Tuesday following the victim's death. He said he drove into the defendant's
driveway, but a vicious dog was outside, and he did not get out of the car. He said
that instead, he blew his horn for three to five minutes, but nobody came outside. He
said he drove across the street and pulled into a gravel parking lot from which he
could observe the defendant's driveway. He said he called Agent Davenport and
Captain Larry McMahan and told them what happened. He said they met him in the
parking lot, and Agent Davenport called the defendant. He said Agent Davenport
spoke with the defendant and told him they were coming to his home. Detective
McCarter testified that when they drove across the street to the defendant's home, the
defendant was standing in the driveway next to his car and had keys in his hand. He
said they explained to the defendant that they were investigating a homicide, and the
defendant invited them into his home.

        He said that he, Agent Davenport, Captain McMahan, and TBI Agent Steve
Richardson accompanied the defendant into his home. He said the defendant mainly
talked to Agent Davenport. He said he observed the defendant and noticed that the
defendant kept his right hand either underneath him or in his pocket during the
conversation. He said that when the telephone rang, the defendant reached out with
his right hand, and he noticed that the defendant had fresh scratches on the back of
his hand. He said the officers began to leave because the defendant said he had no
information about the victim's death, but he and Captain McMahan went back to ask
the defendant about the scratches on his hand. He said he examined the back of the
defendant's hand and saw two long scratches. He said the defendant explained that
briars caused the scratches while he was chopping wood. He said that ten days later,
he obtained a search warrant and took photographs of the scratches. He said that by
then, the injuries had substantially healed.

       On cross-examination, Detective McCarter said that the defendant's friends


                                         -2-
confirmed that the defendant frequently chopped wood, and he admitted that the
defendant's home was in a wooded area. Detective McCarter stated that the
defendant came to the detective's office on January 30 and gave a statement. He said
the defendant admitted that he was at the victim's apartment on Friday, January 19.
He testified that the defendant said the victim started a fight by punching him in the
face, knocking off his glasses. The defendant said they engaged in mutual combat,
and he eventually found some duct tape in a pile of junk in a corner. The defendant
told Detective McCarter that he threw the laundry bag over the victim's head to
disorient the victim so he could escape. He told Detective McCarter that he slit the
bag to allow the victim to breathe.

        Detective McCarter testified that the defendant told him he never punched the
victim in the face because he knew the victim was a restaurant worker. He said the
defendant told him that his primary goal was to detain and disorient the victim in
order to get out of the apartment. Detective McCarter said the victim's hands were
taped differently than how the defendant explained it in his statement. He said the
defendant stated that he thought the victim was alive and breathing when he left the
apartment. He also said the defendant stated that he left the duct tape at the
apartment and placed a table upright that had been knocked over during the struggle.

        On redirect examination, Detective McCarter testified that the defendant is
six feet, three inches tall and weighs two hundred pounds. He said that when he and
the other officers first spoke with the defendant at the defendant's home, the
defendant refused permission to take photographs of his hands. He said that when
the defendant came to the station and made a statement, the defendant said that he
walked from his house to the victim's apartment at about 11:30 p.m. on Friday night.
He testified that the defendant said that he smoked marijuana with the victim that
night, then told the victim he was not going to buy any more marijuana from him.
He stated that the defendant said this made the victim angry, and the victim cursed
and yelled. He said the defendant told him that the victim went to the kitchen, came
back out and threw a rock at him.

        Detective McCarter testified that the defendant told him that the victim then
got a knife. He stated that the defendant said he knocked the knife away and as they
struggled, he saw the duct tape. Detective McCarter said the defendant stated that
he got on top of the victim and taped his hands and legs together. He said the
defendant told him that the victim's hands were ten inches apart, outstretched and
straight over the victim's genital area. Detective McCarter testified that at the scene,
the victim's hands were not ten inches apart; rather they were tightly taped together.
He said the defendant told him that he screamed for Ms. Capiello about twenty times.
He said the defendant told him that once he bound the victim, he turned on the
television, turned off the lights and left. He said the defendant stated that the victim
was moaning and breathing shallowly when he left and that he left the apartment door


                                          -3-
cracked. Detective McCarter testified that at the scene, the table the victim claimed
was knocked over during the struggle was standing upright with a coffee cup
containing coffee and a cigarette tray containing ashes on top of it.

        On recross-examination, Detective McCarter stated that he found several
clumps of hair at the scene, and one clump was in the victim's hand. He said that the
defendant told him that when he was on top of the victim, the victim grabbed his
hair, pulling him back.

         Karen Lanning, a forensic examiner with the FBI Trace Evidence Unit,
testified that she examined the hair found at the scene, and the hair was consistent
with the defendant's hair and inconsistent with all other samples provided to her. She
said the defendant's hair was also found underneath the victim. She said that all of
the hair found on the victim's clothing came from either the victim or the defendant.
She said it looked like the hair from the defendant had been forcibly removed and
would be consistent with the victim having pulled the defendant's hair in a struggle.

         Dr. Cleland Blake, the Assistant Chief Medical Examiner for Tennessee,
testified that he was called to the victim's apartment on January 21, 1996. He said
the victim's body was lying on the floor in the same position as when it was
discovered. He said he saw a table and a rock collection partially overturned on the
floor. He said the victim had a laundry bag over his head and was wearing blue
sweatpants. He said that after removing the laundry bag, he saw that the victim's
hands and feet were tightly bound with duct tape. He said the hands were crossed,
and each hand was taped individually and then bound together tightly. He said that
the victim had injuries to his face and knuckles and that the surface skin on his nose,
chin and cheeks was rubbed off like an abrasion. He said the victim had free blood
around his lips. He said the victim's knuckles and the backs of his hands were
bruised, which indicated that his hands had hit a surface.

        Dr. Blake testified that the victim had compression abrasions on his neck,
which were associated with mild bleeding around the vessels inside the neck. He
said the victim had compression fractures on seven of his ribs, and the fractures were
consistent with someone jumping or sitting down hard on the victim's chest. He said
he found bleeding around the carotid arteries, which was typical of squeezing and
compressing the neck. He said the neck showed only abrasions and not significant
outside bruises because one generally does not see bruises if a cloth or padding is
used to squeeze the neck. He said the victim's injuries were consistent with choking
or squeezing the neck. He determined that the cause of death was compression of the
neck which cut off the oxygen supply and caused the victim to asphyxiate. He said
the choking would have had to last at least five minutes, and the victim could not
have died just from the bag being placed over his head. He said there had to be some
compression.


                                         -4-
                On cross-examination, Dr. Blake testified that he did not examine the duct
       tape for the presence of teeth marks or saliva. He said he saw hair on the scene,
       including at least one clump of hair. He said the victim was smothered through the
       cotton bag, but he did not examine the inside of the victim's nose or his neck area for
       fibers from the bag. He admitted that in his report, he stated that the neck was
       symmetrical and unremarkable with no evidence of grasp marks or encircling lines,
       but he said he meant no marks consistent with strangulation, such as noose marks.
       He said the victim had external injury in the form of abrasions. He said he found no
       grasp marks on the neck, but the skin was rubbed off. He said the victim had internal
       bleeding around the neck vessels which showed that the neck was definitely
       squeezed. He said the bleeding around the neck was not from a kick or a chop but
       from progressive choking. He said he believed the choking was done through the
       cotton bag. He said that because the bag protected the skin, the only visible external
       injuries were abrasions. He said he could not estimate the time of death, but he could
       determine that the victim ate no more than one hour before he died. He stated that
       in his report, he put a question mark next to "compression marks from asphyxiation
       effort." He said his initial impression was that there was compression through the
       fabric, and he believes that the compression was the cause of death.

State v. William B. Thurbley, No. 03C01-9709-CC-00414, 1999 Tenn. Crim. App. LEXIS 457, at
**10-20 (Tenn. Crim. App. May 11, 1999), aff’d and remanded for correction of record, 1999 Tenn.
LEXIS 663 (Tenn. Dec. 13, 1999).

        The petitioner filed a pro se petition for post-conviction relief on December 11, 2000,
followed by an amended petition on January 23, 2004, after the appointment of counsel, and a
supplement to the amended petition on November 30, 2004. Generally, the complaints are against
both pre-arrest counsel and trial counsel, alleging as to trial counsel that he was ineffective in his
pretrial preparation, his opening statement, in the theory of defense, his introduction during cross-
examination of the defendant’s statement to law enforcement officers, his attempting to establish the
defendant’s character, and his preventing the defendant from testifying in his own behalf.
Additionally, he argues that the State intentionally withheld evidence at the trial; the State failed to
elect which offenses were being submitted to the jury; the trial court erred in requiring that pretrial
motions be argued on the day of trial; and he was denied his rights.

        At the petitioner’s March 7, 2005, evidentiary hearing, pre-arrest counsel testified that he had
been practicing law since 1982, with “[a]bout half” of his practice devoted to criminal defense. He
said that the petitioner retained him because of “his concern about protecting him as it related to a
death where he might be a suspect or might be questioned.” He said that the petitioner “didn’t hire
[him] for the murder” and paid “about $2,000.00 pre arrest to protect him, make sure they didn’t
pressure him, that kind of thing.” Counsel was retained “just to make sure that he didn’t give a
statement, do a little investigation. I did investigation. I hired an investigator.” Counsel explained
his efforts on behalf of the petitioner: He said he did not file a motion to withdraw from representing


                                                  -5-
the petitioner because “there was no one to file it with. [The petitioner] was not under charges when
he came to me and I wouldn’t have had a docket number or even a style of the case.” He said that
he did not believe it was necessary to send a letter to the petitioner saying their attorney-client
relationship had ended because “it pretty well figured since he was doing what I had told him not to
do he had pretty well rejected my help.”

        Pre-arrest counsel described the circumstances of the petitioner’s admissions to law
enforcement officers about the homicide: “[The petitioner] came with this preacher fellow and went
to the sheriff’s department, asked for Detective McCarter and said I’ve got something I want to tell
you and he did so without telling me he was doing it.” Counsel said he had advised the petitioner
“not to give any statements of any kind.” He said while he was on vacation, he received a telephone
call from the petitioner and told him, and perhaps Detective McCarter as well, “[D]on’t talk [to] him,
he’s represented.” He gave this advice because he “felt like if [the petitioner] didn’t give a statement
he probably couldn’t get convicted.” Regarding his work on the case, counsel testified:

               [The investigator] and I and [the petitioner] met many times and discussed
       what it is [the petitioner] told us about the incident. We went to and met with Mr.
       McCarter and two or three other law enforcement to make it known that we didn’t
       intend to give a statement. I think [the petitioner] was, as I recall, rather nervous
       about all this and scared. He sort of wanted them to either leave him alone or arrest
       him.

        The petitioner testified that pre-arrest counsel never told him that his representation was
limited to pre-charge matters. Although he had paid counsel $2000, signed “a letter of
representation,” and agreed to pay counsel an additional $2300, the petitioner requested a court-
appointed attorney at his arraignment because counsel had “f[allen] off the radar screen.
Untouchable, you couldn’t get a hold of him. I showed up at his office, made phone calls, no
answers. They put me on hold, half an hour later they’d hang up.” The petitioner said he called
counsel “[c]lose to twenty times over the months.” The petitioner acknowledged that he was
“itching to talk” to the police and that he told pre-arrest counsel he wanted to give a statement.
Counsel told him, “I don’t care what you do.” He said that he had taken Paxil, Xanax, and Ambien
and smoked three marijuana cigarettes prior to giving his statement on January 30 and that his pastor,
Gary Gray, was present when he gave his statement.

        The petitioner said that the public defender’s office was subsequently appointed to represent
him, but the public defender had a conflict of interest and “tr[ied] to get out of representing [him].”
When the petitioner talked to the public defender on May 22, 1996, approximately one month after
he was arrested, trial counsel was “very heated” and told him “he didn’t want any part of [the
petitioner], didn’t want anything to do with [the petitioner].” He eventually met with trial counsel
one to two months later. The petitioner said he did not receive a copy of counsel’s motion to
withdraw until after he was in prison and did not see counsel again until the day of the conflict of
interest hearing. He met with counsel again about two months later and then on January 6, 1997,
which was about five months before trial. He described the meetings as “very, very quick, informal


                                                  -6-
. . . . [Counsel] might ask me one or two questions, that was the end of the meeting.” At the January
6 meeting, counsel informed the petitioner that he was not going to testify, saying, “[Y]ou never put
your defendant on the stand.” The petitioner said he had no impeaching convictions at the time of
his trial. The petitioner then received letters from counsel in March and April and called counsel’s
office and left messages with his secretary.

       The petitioner identified Indictment No. 6791 for first degree felony murder including
kidnapping and said that the first time he had seen it was “[a] couple of months ago” and that he was
never arrested for that charge. He denied that counsel told him he was going to be tried for felony
murder in the perpetration of a kidnapping. He said no investigator worked on his case, nor did
counsel do any mitigation work. The petitioner said he remembered a videotape depicting the
victim’s body “with a laundry bag over his head and with duct tape around his ankles and duct tape
around his wrist” being shown to the jury at trial.

        Asked what he thought when trial counsel told the jury that he had not committed a crime
although he had given a statement admitting he tied up the victim, the petitioner said, “I couldn’t
believe [trial counsel] said it.” The petitioner acknowledged that trial counsel introduced character
evidence as to his peacefulness. The petitioner said he was dissatisfied with the way counsel
represented him, the number of times counsel met with him, and the quality of those meetings.

        On cross-examination, the petitioner said he never received McCarter’s “supplemental
summary” regarding the evidence he collected. According to the petitioner, “none of the evidence
that was picked up at the crime scene was ever fingerprinted or the reports thereof given to [him].”
However, he acknowledged he had admitted in his statement that he had touched the duct tape. The
petitioner said he knew that he did not have to give a statement without pre-arrest counsel being
present, but he could not get in contact with pre-arrest counsel. He acknowledged that he talked to
the public defender’s office who told him to discuss the matter with pre-arrest counsel and not to “go
near law enforcement.”

        The petitioner said he had wanted trial counsel to call Jimmy Sizelow as a witness at trial and
acknowledged that counsel asked for a continuance in that regard which the trial court denied. He
said that although Sizelow was not present at the time of the murder, his testimony “would have
changed this whole thing quite a bit,” explaining that Sizelow was present during drug transactions.
He said that Sizelow was not present at the post-conviction hearing because he could not be located.

        The petitioner said that he was also dissatisfied with trial counsel’s cross-examination of Dr.
Blake and that trial counsel had introduced his statement wherein he admitted he restrained the
victim and cut a slit in the bag over his head. He acknowledged that trial counsel’s theory of defense
was self-defense and maintained that “the whole truth” did not come out at trial.

        Gary Gray testified that he had been the petitioner’s pastor and had accompanied him to the
police station on January 30, 1996, when he gave his statement. He also met with the petitioner and
pre-arrest counsel “at a restaurant one night,” at which time pre-arrest counsel acted as if he were


                                                 -7-
going to represent the petitioner throughout the case. Gray said he did not agree with the way pre-
arrest counsel “was handling things.” He said that he did not notice any signs of intoxication from
the petitioner the day he gave his statement and that the petitioner told the officers the same thing
he had told him. It was Gray’s opinion that pre-arrest counsel was going to represent the petitioner
if he was charged with a crime.

        Detective Jeff McCarter testified that the first time he met the petitioner was at the
petitioner’s house, “days after the homicide had occurred.” The petitioner told McCarter that he did
not want to give a statement at that time and had retained an attorney. The petitioner then telephoned
pre-arrest counsel who informed one of the officers present that he did not want the petitioner to give
a statement. McCarter said he spoke to pre-arrest counsel several times before the petitioner gave
his statement. He did not notice any signs of intoxication on the petitioner the day he gave his
statement.

        Trial counsel testified that he had been employed by the public defender’s office since 1989
and had handled many first degree murder cases. He was appointed to represent the petitioner in
April 1996 and discussed potential witnesses and possible defenses, “[p]articularly self defense,”
with the petitioner. Counsel said, after “discussing the dangers” with the petitioner, he called
character witnesses who testified as to the petitioner’s peacefulness. Counsel said his advice to the
petitioner about testifying at trial

       would have probably been not to take the witness stand because the defense was that
       he went to his preacher, they discussed what happened and they wanted to go tell the
       truth and that’s what he did and his story was going to be told through that statement.
       And basically there wasn’t anything in that statement that he’d have any problem
       with. He said that’s what happened. And that would have been my advice, that you
       can’t do anything but hurt yourself by testifying. But ultimately, [it] always come[s]
       down to the last witness, I tell my client, you have the opportunity to testify and it’s
       your decision.

        Asked if he had done all that he could with the petitioner’s case, trial counsel replied, “In
hindsight, the only thing I would have done differently is not call the character witnesses but I don’t
know of anything else that I could have done.” Counsel said he met with Dr. Blake and studied some
of his books which he used in cross-examination. Counsel said he received all of the petitioner’s
indictments and recalled that the State had a superceding indictment alleging kidnapping which he
discussed with the petitioner before trial.

        On cross-examination, trial counsel acknowledged that his office had between 1500 and 1750
active cases when he was appointed to represent the petitioner and that he had four assistants on
staff. He also acknowledged that he did not have any co-counsel or an investigator to help with the
petitioner’s case. Counsel said that if he had had his current funding and resources at the time of the
petitioner’s trial, “[i]t would certainly be an easier job than it was at that time.”



                                                 -8-
         Trial counsel said he did not recall the victim having duct tape in his nose or mouth although
Dr. Roach’s report said there was duct tape obstructing the victim’s nose, mouth, and sac enclosure.
Counsel said he had not seen the “tip” from Mr. and Mrs. Parton that was provided to Detective
McCarter, but if he had known about the tip, he would have issued a subpoena to the Partons at their
last known address and would have called Detective McCarter. He acknowledged that he received
letters from pre-arrest counsel and that pre-arrest counsel had evidence in his possession.

         Trial counsel identified three letters, dated August 6, 1996, December 11, 1996, and March
12, 1997, that he sent to the petitioner. He read a portion of the March 12, 1997, letter wherein he
informed the petitioner that his case had been set for trial for May 21, 1997, and that because he had
two other murder cases set for trial in April, his time between then and the first of May would be
devoted to the other cases. He acknowledged that, according to his letter, he would have had from
the first of May to May 22 to “do the final preparation” for the petitioner’s trial.

        In response to questioning from the post-conviction court, trial counsel said he knew that the
petitioner was being tried for first degree premeditated murder and felony murder.

      Asked why he had questioned Detective McCarter about the petitioner’s statement on cross-
examination when the State had not asked about it on direct examination, trial counsel replied:

       I think I had some good reason to do it. But, yeah, I would have thought the State
       would have asked certain . . . at least questions about certain portions of that
       statement, on direct, and I’m surprised that they didn’t.

               ....

               Again, thinking back seven or eight years and not recently reviewing the
       record, I don’t know what other evidence they had to offer of that statement. You
       know whether it needed an answer in the way of that . . me introducing that statement
       or what. I would assume I introduced it for a purpose, to answer some evidence.

Trial counsel said it was “possible” that he had allowed the petitioner’s statement to come in on
cross-examination in order to advance a claim of self-defense.

        At the conclusion of the hearing, the post-conviction court made oral findings of fact and
conclusions of law, denying the petitioner post-conviction relief and, subsequently, entered a written
order dismissing the petition.

                                            ANALYSIS

                                      I. Standard of Review




                                                 -9-
        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient
performance of counsel and possible prejudice to the defense are mixed questions of law and fact
and, thus, subject to de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999).

                               II. Ineffective Assistance of Counsel

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

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

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

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

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


                                                  -10-
         As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

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

        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. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in Burns, 6 S.W.3d
at 462, “[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under
the facts of another.”

                                        A. Pre-arrest Counsel

        The petitioner describes only in broad terms the alleged ineffective assistance provided by
pre-arrest counsel:

                It is without question that [the petitioner] disregarded his attorney’s advice
        by volunteering to be interviewed by Detective Jeff McCarter. Under textbook
        representation, [pre-arrest counsel] would have developed a rapport with his client
        that created an atmosphere of trust. That, in turn, would have negated the scenario
        created below, where a confused client goes from door to door in search of guidance.
        Here, [pre-arrest counsel’s] efforts were aloof, to put it mildly. Yet, in all candor, the
        [petitioner] confesses that this issue may not be well received, especially in view of
        the Supreme Court of Tennessee’s decision, entitled Sepulveda v. State, 90 S.W.3d
        633 (Tenn. 2002).


                                                  -11-
        As we understand, the petitioner, saying that he was a “confused client,” claims that pre-
arrest counsel was ineffective because he was “aloof.” By his view, counsel should “have developed
a rapport with his client that created an atmosphere of trust.” The petitioner acknowledges that he
gave his statement to law enforcement officers against the advice of pre-arrest counsel.

         As to the petitioner’s complaints against pre-arrest counsel, the post-conviction court noted
that “there is nothing unusual, unethical or illegal about” an attorney being retained to represent a
client only to a certain point in the criminal process. The court found that it should have been
“obvious” to the petitioner that he had not retained pre-arrest counsel for continued representation.
As the court succinctly stated: “ [O]n the one hand [the petitioner] doesn’t pay [pre-arrest counsel]
for the balance of his representation and on the other hand he wants him to represent him in a trial
of first degree murder case for $2,000.00. So you can’t have it both ways.” The post-conviction
court determined the petitioner failed to establish that pre-arrest counsel had been ineffective, and
the record supports this determination.

                                          B. Trial Counsel

        As to the alleged ineffective assistance provided by trial counsel, the petitioner makes the
general arguments that, had the public defender’s office been better funded, trial counsel “could have
done a better job for [the petitioner] had [h]e been better financed and furnished with an
investigator.” This is pure speculation. In fact, as to the claim that with more funding he could have
done a better job for the petitioner, trial counsel instead said it would have been “an easier job than
it was at that time.” This claim is without merit.

        Initially, we note that the petitioner consistently fails to recognize in his various complaints
that, against the advice of counsel, he gave a statement to law enforcement officers, creating a
problem for his trial counsel, as the post-conviction court explained:

       [Y]ou do what you can with what you’ve got. Every defense lawyer, including yours
       truly, has been in cases where not only were the facts against you but the law was
       against you. That was what happened to [trial counsel] in this case. This defendant
       had basically admitted to every fact necessary to constitute the crime charged except
       for the actual killing. That happened long before [trial counsel] got in the case and
       it happened, not on [pre-arrest counsel’s] advice but on the advice of this defendant’s
       pastor. Neither of these attorneys caused that to happen.

         The petitioner, in his numerous and diverse claims of ineffective assistance of counsel, also
fails to recognize that much of the strength of the State’s case against him resulted from his ignoring
the instructions of pre-arrest counsel and giving a statement to law enforcement officers, admitting
that he taped the victim’s hands and feet and placed a bag over his head but did so in self-defense.
The careful taping of the victim’s hands and feet, immobilizing him, and the fact that he had been
strangled belie the petitioner’s claims that he was attempting only to subdue the victim so that he



                                                 -12-
could escape. The petitioner does not suggest a trial strategy or theory which would have bridged
his self-defense claim with the incompatible manner of the victim’s death.

                                      1. Pretrial Preparations

         The petitioner makes the conclusory allegations, in asserting trial counsel was ineffective as
to his pretrial efforts, that “relatively nothing was done to prepare for trial; thus, the services
rendered were not within the range of competence of attorneys in criminal cases.” As we
understand, the specific claims as to trial counsel’s allegedly deficient pretrial preparation are that
had the pretrial motions been argued before the morning of trial, counsel might have “realize[d] that
he was defending not one, but two counts of murder,” those being first degree premeditated murder
and felony murder; counsel failed to notify the petitioner that he had been charged with felony
murder or provide him with a copy of the presentment charging him with the offense; and counsel
failed to obtain a copy of the victim’s death certificate, which, according to the petitioner, “contained
very useful errors in connection to the victim’s cause of death.” The petitioner has failed to allege,
much less show, that any of these claimed shortcomings affected the outcome of the trial and, thus,
prejudiced him. Accordingly, the record supports the post-conviction court’s finding that this claim
is without merit.

                                       2. Opening Statement

       The petitioner complains that trial counsel was ineffective by saying, in his opening
statement, that the petitioner was not “violent” and “had committed no crime”:

        He’s been a productive citizen, been a hard worker, and you’ll have highly respected
        members of this community c[o]me in and tell you that they have known [the
        petitioner]. . . .

               He is a man of impeccable character; he is not a violent man. He is . . . one
        of the most respectable persons that these people have ever met, one of the nicest
        individuals, with children, with society, very polite and mannerly – not a killer.

                We’re satisfied . . . that he had committed no crime.

        Out of the lengthy opening statement of trial counsel, the petitioner has focused on these two
short phrases to argue that trial counsel was ineffective. The problem with this criticism is that the
petitioner neglected to question him as to why he had made these statements. As we have set out,
the petitioner has the burden of proof to establish that trial counsel was ineffective and that he was
prejudiced thereby. In view of his failure to present any evidence, such as questioning trial counsel
about these claims, the petitioner can prevail only if, as a matter of law, the statements constitute
ineffective assistance of counsel and the petitioner was prejudiced thereby. We conclude that, given
the tenor and theme of the opening statement of the petitioner’s trial counsel, the statements were
consistent with the claim of self-defense. In any event, the petitioner failed to show that he was


                                                  -13-
prejudiced by the statements, especially given the strong proof against him. Accordingly, the
petitioner has failed to establish that trial counsel was ineffective in this regard.

                                        3. Theory of Defense

      This complaint is based upon trial counsel’s response to the court at the beginning of the trial
when questioned as to the intended defense:

                Well, it’s not a – it would be mainly part and parcel of it self defense, but
        there’s more to it than that.

                ....

                 Because of the situation that developed with my client down there at the
        victim’s house that night, they were discussing marijuana, and my client not going
        to purchase any more marijuana from him because of a financial situation, and it sort
        of sent the victim into a tirade, calling and threatening my client, thinking he’s going
        to be a narc . . ., and so forth. I think it’s common knowledge that people who not
        only smoke marijuana, but deal in selling marijuana, may be paranoid more than
        others, and this paranoia caused by the presence of marijuana in his system could
        help explain the tirade that he did go into, and helps support our position that he was
        the initial aggressor in this.

        The petitioner explains his ineffective assistance of counsel claim based on this statement
by saying that “the sad truth that these services rendered in his behalf by trial counsel were not within
the range of competence of attorneys in criminal cases. . . . And, but for [trial counsel’s] deficient,
perhaps absent[,] theory of defense, the results of the trial would have been different.”

       As the petitioner notes, trial counsel agreed in his testimony at the evidentiary hearing that,
according to the question, the petitioner’s statement to law enforcement officers became his theory
of defense at the trial. We note, in considering this claim, that trial counsel was saddled with a
statement made by the petitioner to law enforcement officers in which he admitted binding and
immobilizing the victim but claimed he did so in self-defense. Even on appeal, the petitioner does
not argue that the statement was not admissible.

        As we previously have set out, the post-conviction court explained that the petitioner “had
basically admitted to every fact necessary to constitute the crime charged except for the actual
killing.” The petitioner has not identified a theory which, if utilized by trial counsel, could have
avoided the fact of his statement to officers.

        The record supports the finding of the post-conviction court that the petitioner failed to
establish that trial counsel was deficient in the defense theory he pursued at the trial.



                                                  -14-
                           4. Introduction of Petitioner’s Confession

        The petitioner argues that trial counsel was ineffective because, after the State had completed
its direct examination of Detective Jeff McCarter, counsel questioned him about the petitioner’s
statement of January 30, 1996.

         Although the matter had not been discussed on direct examination, during the cross-
examination of Detective McCarter, defense counsel questioned him about the petitioner’s statement
to law enforcement officers. Through his questioning, counsel established that the petitioner,
accompanied by his pastor, voluntarily went to the police station and gave a statement as to the death
of the victim. In his statement, the petitioner said that he had taped the victim’s hands and feet and
placed a laundry bag over the victim’s head to disorient him so he could escape from the victim, but
he cut a slit in the bag so the victim could breathe. Detective McCarter said that the bag did have
such a slit. The petitioner further told McCarter that the victim, armed with a knife, had initiated a
fight, and the petitioner disarmed him after a three-to-four-minute struggle. The petitioner said that
the victim had struck him and knocked off his glasses. Detective McCarter acknowledged that the
wounds on the victim’s hands could have been offensive wounds. As the petitioner had described
in his statement, officers found a small box containing marijuana residue at the victim’s residence.
Detective McCarter agreed with counsel’s statement that the petitioner had said he tried to avoid
hitting the victim in the face and was trying to get out of the victim’s house.

         At the evidentiary hearing, trial counsel in his testimony suggested a reason he may have put
this statement before the jury by asking Detective McCarter about it during cross-examination:

       Q.      It was helpful, and assuming what I’m telling you is true, and we’ve got a
       record, okay, you would have to second guess yourself in raising that statement on
       cross examination?

       A.      Again, thinking back seven or eight years and not recently reviewing the
       record, I don’t know what other evidence they had to offer of that statement. You
       know whether it needed an answer in the way of that . . . me introducing that
       statement or what. I would assume I introduced it for a purpose, to answer some
       evidence.

       Q.     Could it be possible that you have allowed the statement to come in on cross,
       when it wasn’t brought in on direct, in order to somehow advance a self defense
       claim?

       A.      Yes, that’s . . . That’s possible.

        We note that when defense counsel questioned Detective McCarter about this statement
during cross-examination at the trial, the State had not yet rested its case-in-chief. Further, the
petitioner had talked with his girlfriend, Debra Loveday, who was on the State’s witness list, and


                                                    -15-
given the same explanation as to how the victim died.1 The record does not reflect whether she was
present during the trial; and, at the evidentiary hearing, the petitioner presented no proof as to what,
if any, use the State intended to make of the statement or whether the State would have called
Loveday as a witness if Detective McCarter had not testified about the petitioner’s statement. Trial
counsel surmised that he might have cross-examined McCarter about the statement because it was
the only method to put the petitioner’s self-defense claim before the jury without subjecting him to
what could well have been a devastating cross-examination.

        The record supports the determination of the post-conviction court that the petitioner failed
to establish trial counsel was ineffective in questioning McCarter about this statement.

                                            5. Character Evidence

        The petitioner argues that trial counsel was ineffective for calling as character witnesses
Michael Cecil Howard, Gary Gray, Albert Cissero, and Joan McGill. According to the petitioner,
these witnesses were called to testify as to his reputation for peacefulness and faced “damming
inquiry.”

       Since the cross-examinations of these witnesses were very similar, we will review only the
testimony of the first witness in this regard, Michael Cecil Howard. He testified on direct
examination that he had known the petitioner for six years, both as a co-worker and on a social level,
and that the petitioner had a reputation as being “[v]ery peaceful.” On cross-examination, Howard
was asked the following:

         Q.       You’ve testified regarding his reputation for peacefulness, is that right, sir?
         Is it also a part of that reputation – have you heard that [the petitioner], on or about
         May 17, 1995, did assault his wife at that time, Debbie Lunsford, by grabbing her
         throat, kicking her feet out from under her, landing on top of her, and choking her.
         Had you heard that?

         A.       I heard something about that, yes, sir.

         Q.     Did you consider that report when you testified regarding his reputation for
         peacefulness?

         A.      Yes, sir, because I went up there shortly thereafter, and I saw the one you’re
         talking about, and she was not scratched, no – looked like she hadn’t been touched
         at all.


         1
          The appellate record contains a transcript of a statement given by Loveday on January 24, 1996, to an attorney
apparently representing her. She stated the petitioner told her that, while he was at the victim’s residence, the victim
pulled a knife on him, they struggled, and the petitioner “wrestled [the victim] down” and “tied him up loose enough till
he could get through.”

                                                         -16-
       Q.      So you just discounted that report?

       A.      Yes, sir.

       Q.      Had you heard that two days after that [the petitioner], long about May 19th,
       1995, that he again assaulted Debbie Lunsford, his wife at that [time], sat down on
       her, and choked her. Did you hear about that report also?

       A.      No, sir.

       Q.      You didn’t hear that report?

       A.      No, sir.

       Q.      Now hearing that report and considering that, would that change your opinion
       as to his reputation for peacefulness?

       A.      No, sir, because I know [the petitioner].

       Q.      You know from your own personal knowledge, is that what you’re saying?

       A.      Yes, sir.

       At the evidentiary hearing, trial counsel testified that he and the petitioner had jointly
determined to present character proof:

       A.        [T]he best I recollect we discussed how damaging that could be and I think
       we made the decision together and . . . we had very good character witnesses, in my
       opinion. And he said the allegations that you cross examined him about weren’t true
       and . . .

       Q.      When you say “we decided this” and “he”, you’re talking about [the
       petitioner]?

       A.      That’s correct.

         The other character witnesses were cross-examined in a similar fashion. Trial counsel
testified that he discussed with the petitioner the dangers of calling the character witnesses and the
potential for the State to introduce damaging testimony about violent behavior. He said they “made
the decision together” to call these witnesses. Counsel said, as to the trial, “the only thing I would
have done differently is not call the character witnesses.” Even if the petitioner were correct that
counsel erred in presenting character proof, he has failed to show, given the strength of the State’s
proof, that this testimony affected the outcome of the trial.


                                                -17-
                             F. Petitioner’s Denial of Right to Testify

        As we understand the petitioner’s claims in this regard, they are that trial counsel “just told
[him], you are not going to testify, that’s that.” However, trial counsel testified that the petitioner
made the decision not to testify:

        Q.      Did you talk to him about him testifying in this case?

        A.       I know we did. The specific times that we did, I can’t tell you. Did I tell him
        you will not testify, no, I didn’t. My advice, under the circumstances of the case,
        would have probably been not to take the witness stand because the defense was that
        he went to his preacher, they discussed what happened and they wanted to go tell the
        truth and that’s what he did and his story was going to be told through that statement.
        An basically there wasn’t anything in that statement that he’d have any problem with.
        He said that’s what happened. And that would have been my advice, that you can’t
        do anything but hurt yourself by testifying. But ultimately, [it] always come[s] down
        to the last witness, I tell my client, you have the opportunity to testify and it’s your
        decision.

        As to this claim, the post-conviction court found the petitioner had failed to establish that
he did not know he had a right to testify: “[T]here is no real evidence in this case to suggest that this
defendant did know about his right to testify but I’m not imputing that to him. I’m just saying
there’s no evidence about that issue here.”

         The petitioner acknowledges Momon v. State, 18 S.W.3d 152, 168 (Tenn. 1999), is not given
retroactive application because it did not establish a new constitutional right. However, he argues
that this court should apply the criteria set out in State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim.
App. 1991), and conclude that counsel was ineffective in advising that the petitioner not testify at
his trial. This argument overlooks the fact that trial counsel testified it was the decision of the
petitioner that he not testify. Further, we note that while the petitioner hinted that he could provide
an apparently more benign explanation of what transpired between him and the victim, he did not
suggest what this might have been.

        We conclude that the record supports the determination of the post-conviction court that this
claim is without merit.

                            III. Withholding of Evidence by the State

        In his brief, the petitioner explains his claim that the State withheld certain evidence from
him:

               Initially, a Discovery Request was filed. Secondly, the State did, in fact
        suppress evidence: the “tip” regarding the suspects, named “Parton”; the misplaced


                                                  -18-
       duct tape and fingerprint evidence; the Supplement from Detective McCarter, which
       provided a wealth of information, were all suppressed by the State. Likewise, the
       Victims’ Compensation denial, based upon the fact that the victim “may have been
       involved in illegal activity” was suppressed; and tangible evidence gathered at the
       scene of the homicide. And with reference to a suspect, named Dean Oakie, his
       polygraph examination, which indicated that he stole from the victim’s residence,
       was suppressed. Finally, a letter written by “Irene and Dean” surfaced after trial,
       which provided that one of these individuals was “grateful for the time I spent with
       [the victim] the day of his death.”

                More significantly, [the prosecutor’s] own, holographic trial notes provided
       that “If Dean Oakie stole, he wouldn’t be the one to call and find the body. Let Irene
       do it. Let someone else do it. Never admit to being in apartment alone [and] finding
       body.”

       The post-conviction court found that this claim was without merit:

                There is no evidence in this record of any Brady [v]iolations and specifically
       as it relates to any tip that Mr. and Mrs. Parton apparently gave to Detective Jeff
       McCarter. They’re not here. They have not – The substance of their testimony has
       not been offered and the mere giving of a tip, while it might be subject to disclosure,
       since the disclosure in these proceedings, they’re not here to testify.

        In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963), the United States
Supreme Court held that the prosecution has a duty to furnish to the defendant exculpatory evidence
pertaining either to the accused's guilt or innocence or to the potential punishment that may be
imposed. The Court explained that “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Id. The duty to disclose
extends to all information favorable to the accused whether the evidence is admissible or
inadmissible, State v. Spurlock, 874 S.W.2d 602, 609 (Tenn. Crim. App. 1993), and to information
“which might be useful to the defense[.]” Branch v. State, 4 Tenn. Crim. App. 164, 173, 469 S.W.2d
533, 536 (1969). However, the State’s duty under Brady to turn over evidence does not extend to
information that the defense either already possesses or is able to obtain or to information not in the
possession or control of the prosecution. Wooden v. State, 898 S.W.2d 752, 755 (Tenn. Crim. App.
1994) (citing Banks v. State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). Further, Brady does not
require the State to investigate on behalf of the defendant. State v. Reynolds, 671 S.W.2d 854, 856
(Tenn. Crim. App. 1984).

       In order to establish a due process violation under Brady, a defendant must show the
following:




                                                 -19-
        1. The defendant must have requested the information (unless the evidence is
        obviously exculpatory, in which case the State is bound to release the information
        whether requested or not);

        2. The State must have suppressed the information;

        3. The information must have been favorable to the accused; and

        4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995) (citations omitted).

        We will apply these principles to the petitioner’s claims. When shown the note referring to
a “tip” and listing the names Ricky Parton and wife, Joy Parton, with the cryptic phrase, “429-0313
does not work,” trial counsel said he “never saw it.” Post-conviction counsel then questioned trial
counsel about this note by saying, “And Mr. and Mrs. Parton could have said maybe that Steve
Hawkins did or that he did it, you know, somebody else besides [the petitioner].” However, since
neither Mr. nor Mrs. Parton testified at the hearing, the record contains no evidence as to what
relevant information, if any, they might have had. We note that the petitioner, in speculating that
they might have testified that someone other than the petitioner killed the victim, fails to take into
account his statement to Detective McCarter that he, himself, had bound the victim’s hands and feet
and placed a laundry bag over his head.

         The so-called “duct tape and fingerprint evidence” refers simply to an eight-years-after-the-
fact statement that, apparently, a fingerprint analysis had not been performed on the tape used to bind
the victim. Thus, as we understand this argument, the petitioner is claiming that the State suppressed
evidence by not revealing that certain items had not been processed for fingerprints. No authorities
are provided in support of the argument that the State specifically must identify which items were
not examined for the presence of latent fingerprints. In view of the fact the petitioner admitted that
he had bound the victim with the duct tape he found at the victim’s house, it is unclear why the State
would have checked the tape for the petitioner’s fingerprints or how the presence of another person’s
prints on the tape would have benefitted him. This claim is without merit.

        The petitioner complains that the State suppressed “the [s]upplement from Detective
McCarter, which provided a wealth of information.” Although what purports to be a copy of this
supplement is contained in the appendix to the petitioner’s brief, it was not entered into evidence
during the hearing. Accordingly, it is not properly before this court and cannot be considered.
Further, in his questioning of trial counsel, the petitioner did not explore the “wealth of information”
to establish how it would have benefitted the defense. This claim is without merit.

        The petitioner argues that the State illegally suppressed “the Victim’s Compensation denial,
based upon the fact that the victim ‘may have been involved in illegal activity.’” What purports to
be a copy of this denial is found only in the appendix to the petitioner’s brief. Accordingly, it is not
in evidence and may not be considered by this court. The purported results of the polygraph

                                                 -20-
examinations administered to “a suspect, named Dean Oakie, . . . which indicated that he stole from
the victim’s residence” are located in the appendix to the petitioner’s brief, but not in evidence.
Accordingly, we cannot consider the suppression claim as to this alleged document. Further, even
assuming, arguendo, that this would have been admissible, the petitioner has not shown how it
would have been material to the defense.

         The petitioner argues that the State suppressed “a letter written by ‘Irene and Dean’ [which]
surfaced after [the] trial, [and] which provided that one of these individuals was ‘grateful for the time
I spent with [the victim] the day of his death.” Although a copy of what purports to be this letter is
contained in the appendix to the petitioner’s brief, it was not entered into evidence and, therefore,
is not properly before this court. Accordingly, we cannot consider this claim. Further, the petitioner
has not shown how this letter would have been material to the defense or suggested why it was
admissible.

        Although it is not entirely clear from the petitioner’s brief, it appears he argues that the State
should have provided a copy of “[the prosecutor’s] own, holographic trial notes provided that ‘If
Dean Oakie stole, he wouldn’t be the one to call and find the body. Let Irene do it. Let someone
else do it. Never admit to being in apartment alone [and] finding body.’” The petitioner’s brief does
not reveal that at the evidentiary hearing he questioned any witnesses about this document, and he
has provided no authorities or argument to support his apparent position that he is entitled to
discover the written mental impression of the prosecutors. The post-conviction court concluded the
petitioner had failed to establish that any Brady violations occurred, and the record supports this
determination.

                         IV. Election of Offenses and Patchwork Verdict

        The petitioner argues that the State did not elect between the offenses for which he was
indicted, resulting in his being convicted of both first degree premeditated murder and felony murder.
Additionally, in this regard, he argues that even though the trial court subsequently entered an order
merging the two convictions, as directed by our supreme court, “that [order] had no effect on the
piecemeal deliberation that surely resonated among jurors as they considered both charges.”

        As the petitioner recognizes, he stands convicted of only one offense. His argument, as we
understand it, that the jury’s verdicts were affected by the fact it was considering two homicide
indictments, is based upon nothing other than speculation. The problem with this argument is that,
on direct appeal, our supreme court merged the petitioner’s convictions for first degree premeditated
murder and first degree felony murder. Accordingly, as we understand this issue, it was resolved on
direct appeal.

                            V. Arguments of Motions on Day of Trial

        The petitioner argues that the trial court violated his right to due process by not hearing
arguments on his motions until the day of trial. He supplies no authorities to support his claim that
such a procedure may violate the due process rights of a defendant. Further, he has not attempted to

                                                   -21-
explain why this claim was not raised on direct appeal or, if properly raised as a post-conviction
claim, how he suffered prejudice. Accordingly, this issue is waived. See Tenn. Code Ann. § 40-30-
106(g).

                                       VI. Cumulative Errors

         As his final claim, the petitioner asserts that this court “will soon realize that a negative
synergy fell upon the [petitioner’s] trial as the result of the combination of constitutional deficiencies
born from the Trial Court, the District Attorney, and Trial Counsel.” We interpret this claim to be
that an accumulation of errors prevented his receiving a fair trial. However, as we have set out, we
conclude that his post-conviction claims are without merit. Further, even if there were trial errors,
this claim is waived because it was not presented on direct appeal. See id.

                                           CONCLUSION

       As we have set out, the record fully supports the findings and conclusions of the post-
conviction court. Accordingly, we affirm the dismissal of the petition.


                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




                                                  -22-
