     IN THE COURT OF CRIMINAL APPEALS OF
                 TENNESSEE

                  AT NASHVILLE                       FILED
              JULY SESSION, 1999                      October 29, 1999
                                                    Cecil Crowson, Jr.
                                                   Appellate Court Clerk
CYRUS DEVILLE WILSON,            )   C.C.A.
NO. 01C01-9811-CR-00448
                                 )
           Appe llant,           )
                                 )   DAVIDSON COUNTY
V.                               )
                                 )
                                 )   HON. SETH NORMAN, JUDGE
STATE OF TENNESSEE,              )
                                 )
           Appellee.             )   (POST-CONVICTION)



FOR THE APPELLANT:                   FOR THE APPELLEE:

WILLIAM A. LANE                      PAUL G. SUMMERS
3236 Dilton Mankin Road              Attorney General & Reporter
Murfreesboro, TN 37127
                                     ELIZABETH B. MARNEY
                                     Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     VICTO R S. JO HNS ON, III
                                     District Attorney General

                                     KIMB ERLY HAAS
                                     Assistant District Attorney General
                                     Washington Square, Suite 500
                                     222 2nd Avenue North
                                     Nashville, TN 37201-1649




OPINION FILED ________________________

VACATED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                   OPINION
      Petitioner Cyrus D eville W ilson app eals as o f right from th e denia l of his post-

conviction petition by the Davidson County Criminal Court. Petitioner was convicted

by a jury of first degree m urder, and seeks post-conviction relief on a number of

grounds. Because the trial court’s order denying post-conviction relief is incomplete,

we vacate the judgment entered by the trial court and remand the case for the entry

of a new order consistent with this opinion.



                                I. Procedural History



        A review of this Court’s opinion on Petitioner’s direct appeal reveals that

Petitioner was c onvicte d of first d egree murd er by a D avidso n Cou nty jury in

February of 1994 , and Pe titioner was senten ced to life im prisonm ent. See State v.

Cyrus Deville W ilson, C.C.A. No. 01C01-9408-CR-00266, 1995 WL 676398 at *2,

*5 (Davidson County) (Tenn. Crim. App., Nashville, Nov. 17, 1995) perm. to appeal

denied (Tenn. 1996). The conviction was affirmed by the Court of Crim inal Ap peals

in December of 1995. Id. at *1. Permission to appeal to the Tennessee Supreme

Court w as den ied on M arch 25 , 1996. Id.



      Petitioner, acting pro se, filed his initial post-conviction petition on August 15,

1996. Petitioner alleged that (1) trial counsel wa s ineffective because counsel was

undergoing psychological or substance abuse evaluation during his representation

of Petitioner; (2) the trial court erred in giving a jury instruction on reasonable doubt

that did not meet constitutional standards; (3) trial counsel was ineffective because

counsel failed to object to this instruction; (4) the state failed to disclose an oral

statement mad e by P etitione r, desp ite the fa ct that it w as listed in Petitio ner’s

discovery request, and the state intended to use the statement at trial; (5) the state

violated Petitioner’s due process rights because the state called a material witness,

whose eviden ce wa s part o f the sta te’s proof-in-chief, as a rebuttal witness; and (6)

                                            -2-
the state violated Petitioner’s due process rights because the state failed to identify

witnesse s in the ind ictmen t whose testimon y was pa rt of the state ’s proof-in-c hief.



      Post-conviction counsel was appointed for Petitioner, and an amended post-

conviction petition was filed on June 6, 1998. In the amended petition Petitioner

alleged that his trial coun sel was ineffective be cause of co unsel’s failure to locate,

interview, and present alibi witnesses th at were available and willing to testify on

behalf of Petitioner.



                                        II. Facts



      In this Co urt’s opinion addressing Petitioner’s direct appeal we summarized

the facts of Petitioner’s case:

            On September 15, 1992, Metro Davidson police officers found
      the body of Christopher Luckett partly lodged underneath a chain link
      fence in East Nashville. The victim had sustained a fatal gunshot
      wound to the head. The officers also found empty shotgun shells,
      shotgun "wadding," and a blue duffel bag at the crime scene. On
      February 2, 1993, the Davidson County Grand Jury indicted the
      appellant for the v ictim's murd er. Th e cas e proc eede d to trial on
      January 31, 1994.

             At trial, the state first called Chiquita Lee, the victim's sister, in
      order to establish the victim's age and health. Ms. Lee testified that the
      victim was nineteen years old at the time of his murder and that he had
      a deform ity in his right arm that preve nted its full use. Defense counsel
      objected on the gr ound th at the state had not given prior notice of their
      intent to call Ms. Lee as a witness. The trial court overruled the
      objection.

             The state next presented evidence to establish a motive for the
      murder. Officer Phillip Wright testified that during routine patrol on or
      about July 20, 1992, he was stopped by the appellant who reported that
      the victim, Luckett, had s tolen his car. Officer W right further testified
      that, when aske d if he wanted to swear out a warrant against the victim,
      the appellan t replied "no t right now." D efense couns el objecte d to this
      testimony on the ground that the appellant's statement to Officer Wright
      had not been disclosed prior to trial. Again, the trial court overruled the
      objection.

             Next, the state called two e yewitnesses to the murde r. The first,
       Rodriguez Lee, testified that the appellant had a twelve-gauge shotgun
       which came from Mr. Lee's house. Lee added that he saw the
       appellant remove the gun from a blue duffel bag. Lee stated that he
       saw the appellant chasing the victim on the night of the murder. He
       further testified that the victim got stuck underneath a patio fence. Lee

                                           -3-
      then stated that he heard the victim plea d "[p]lease don't kill me ."
      According to Lee, the appellant paid no heed to the victim's pleas for
      mercy. Instead, he fired point-blank into the victim 's face . Marq uis
      Harris, another witness for the prosecution, also testified that he saw
      the appellant shoot the victim in the face.

              Other witnesses co rroborated this tes timony. Steve Crawley
      testified that he saw the appellant three weeks prior to the murder
      carrying a shotgun. Craw ley also testified that he witnessed the
      appe llant on the night of the murder "acting shaky and nervous."
      Another witness, Frederick Davis, testified that he overheard the
      appellant state that "he was going to get" the victim for stealing the
      appellant's car.

              The appellant testified as a witness on his o wn beh alf. The
      appellant denied any involvement in the murder, contending that he
      was at home with his girlfriend at the time of the shooting. The
      appellant did admit that, after the victim stole his car, he threatened to
      "get" the victim. On cross- examination, the state asked the appellant
      if, on the night of the shooting, he was in possession of a shotgun. The
      appellant responded that he wa s not. T he sta te then inquire d if all the
      other witnesses who testified that the appellant did have a shotgun
      around the time of the shooting were "lying ." The appellant responded
      affirmatively.

             At the close of the defens e's case in chief, the s tate called
      Detective Bill Pridem ore as a rebuttal witn ess. Prior to trial, Pridemore
      had made a summary of statements given to him by Rodriguez Lee
      during questioning. The statemen ts corroborated Lee's trial testimony.
      On direct exam ination , the sta te ask ed Pr idem ore to re coun t his
      summ ary of thes e state men ts. Defe nse c ouns el obje cted on the
      ground that Pridemore was a material witness, and thus, should not be
      permitted to testify as a rebuttal witness. The state argued that the
      appellant had "opened the door" when he testified on
      cross-examination that anyone who said he possessed a shotgun on
      the night o f the m urder was "lyin g." The trial judge overruled defense
      counsel's objection.

Wilson, C.C.A. No. 01C01-9408-CR-00266, 1995 WL 676398 at *1-2.



                          III. Post-Conviction Hearings



      Two post conviction hearings were held. At the initial post-conviction hearing

Petitioner presented two witnesses, Dawone Matthews and Brandi Chriswe ll. Both

witnesses testified that they were in the general vicinity of the murder on September

15, 1992, and that they saw Petitioner somewhere other than the murder scene at

the time th e murd er was c omm itted.




                                          -4-
       Matthews testified that he knew Petitioner because he was dating Petition er’s

sister around the time of the murder. Chriswell, who was 12 years of age at the time

of the mu rder, testified that she knew Petitioner’s face and name. Both Matthews

and Chris well tes tified that on the da te of the murd er they were in an are a in

Nash ville called “the villag e.”    At th at time both were con grega ting with their

friends–Matthews was on a basketball court, and Chriswell was out on the porch of

an apartm ent adjac ent to the b asketb all court. Both testified that Petitioner was also

on the b asketb all court.



       When gun shots rang out, Matthews stated that he ran with his girlfriend

(Petitioner’s sister) to the home of Petitioner’s mother. Matthews testified that

Petitioner ran in the house right after Matthews. On cross examination, Matthews

testified that Pe titioner w as run ning w ith him imme diately after th e shots were fired,

and that the place where the victim was killed was approximately 30 yards away

from the basketball court. Chriswell testified that when shots were fired, she saw

Petitione r on the b asketb all court, and that the gunshots came from an area to the

right of her-- away from the cour t.



       Both Matthews and Chriswell testified that they were not contacted by any

attorneys for Petitioner until they were approached by pos t-conv iction co unse l, but

that they would have testified at Petitioner’s trial had they been asked. On cross

examination both acknowledged that they did not know the date of Petition er’s trial.

Matthews stated that he did not come forward with his information because the idea

“never ca me to m y mind.”



       The State ca lled Petition er’s mo ther, Valerie W ilson Ehinlaiye. Ehinlaiye

testified that Petitioner entered her home five to ten minutes after the shooting, and

that he entered with a woman named Sonya, not with Matthews. Ehinlaiye also

testified that sh e was not ca lled as a witne ss at P etitione r’s trial.



                                              -5-
       The hearing was then continued until October 14, 1998, at which time

Petitioner called Pe titioner’s trial cou nsel to the stand, an d Petitione r also cho se to

testify.   Trial co unse l testified that he did undergo psychological and drug

dependency evaluations, but tha t these occurre d after his representation of

Petitioner, and that his license was in good standing during Pe titioner’s

representation. Trial counsel also testified that he did no t recall th e reas onab le

doubt instruction that was given to the jury. Post-conviction counsel for Petitioner

attempted to question trial counsel regarding the non disclosure of Petitioner’s oral

statement by the State, as well as the State’s use of a material witness in rebu ttal,

but the post-conviction court ruled that both issues were predetermined.



       As to alibi witnes ses, tria l coun sel tes tified tha t Petition er gav e him the “street”

names of three ind ividuals wh o could p rovide alibis for Petitione r: “Jabbe r,”

“Rodn ey,” and “Ice.” Petitioner did not provide formal names or addresses for these

individuals, but told counsel that they could be located in a particular area of the

Edge Hill housin g projects . Trial counsel said that he canvassed this area four times

looking for these person s, twice by himself, twice with an assistant, but was

unsuccessful each time. Counsel stated that he did not recognize the names of

Dawone Matthews or Brandi Chriswell.                 Trial counsel testified that Petition er’s

mothe r was no t called as a n alibi witnes s beca use sh e could n ot provide an alibi.



       Petitioner testified that he gave trial counsel the names of several alibi

witnesses: Craig Johnson (“Ice”), “Snake,” “Jab ber,” Dewa n (sic), Rodne y, Randy,

and Brandy (sic). Petitioner stated that he did not provide trial counsel with the given

names of all the p ossib le alibi w itness es be caus e he w as no t familia r with the ir

names, but that the street na mes “are the names that they go by eve ry day.” He

also testified that he did not provide formal addresses because he did not know

them, but that these individuals we re in Petitioner’s neighb orhood eve ry day.

Petitioner testified that he had no personal knowledge of any efforts trial counsel

may or may no t have m ade to loc ate the w itnesses .

                                               -6-
       Following the hearing the post-conviction court orally dismissed the petition:

       The Court:    The allega tion is ine ffective a ssista nce a nd co unse l in the
                     matter and un der the law , it is the petitioner’s burden to
                     carry the proof. I have Mr. Wilson saying he gave the
                     names to Mr. Blair and Mr. Blair didn’t do anything. M r.
                     Blair tells me he we nt and looked for the witnesses.
                     The re’s no proof here that the ou tcom e of the trial wou ld
                     be any different or that Mr. Blair was outside of the
                     requirem ents as far as counselor is concerned in a case
                     in this community (sic). The petition is dismissed.


       The trial court issu ed a writte n order dismissing the petition, but did not set

forth any findings of fact or conclusions of law in the order or in a sep arate

memorandum.



                                       IV. Analysis



       Petition er’s request for post-conviction relief is governed by the Post

Conviction Procedure Act of 1995. See Tenn . Code Ann. § 40-30 -201, C omp iler’s

Notes (1997). As a threshold matter we must decide if the post-convictio n cou rt’s

failure to issue written findings of fact and conclusions of law precludes us from

addressing Petition er’s appe al. Tennessee Code Annotated § 40-30-211(b) requires

a post-con viction trial cou rt to enter a written order or memorandum upon final

disposition of a petition, wh ich “sh all set fo rth . . . all gro unds prese nted, a nd sh all

state the findings of fact and conclusions of law with regards to each s uch gro und.”

(1997). See also Tenn . Sup. C t. R. 28, § 9 (A).



       Here, we have no such findings o f fact and conclusions of law. Th e post-

conviction court disposed of Wilson’s petition orally following the conclusion of the

second evidentiary hearing. The written order entered thereafter does not co ntain

any findings of fact and conclusions of law. Nor is there a separate memorandum.



       Section 40-30-211(b) is identical to its pred ecesso r, § 40-30 -118(b). Comp are

Tenn. Code Ann. § 40-30-2 11(b) (1997 ) with Tenn. Code Ann. § 40-30-118(b)


                                              -7-
(1990).     This Court interpreted the provisions of § 40-30-118(b) as creating

manda tory obligations that a trial court must follow in a post-conviction proceeding.

See State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984) (citing Brown

v. State, 445 S.W.2d 669 (Tenn. Crim. App. 1969)). Because the purpose of the

section was to ensure m eaningful app ellate review, a trial court’s failure to com ply

with the section did no t constitute a cons titutional abridgem ent nor did it render a

petition er’s convic tion or s enten ce void or voidab le. Id. (citing Georg e v. State , 533

S.W.2d 322 (Tenn. Crim. App. 1975)). The remedy for a trial court’s failure to

com ply with § 40-30-118 was assessed on a case-by-case basis: “Non-compliance

by the post-conviction court does not warrant a reversal if the record is s ufficient to

effectuate a mea ningful ap pellate revie w . . . . ‘Where the record of the proceedings

contains the reasons of the trial judge for dismissing th e petitio n, the re cord is

sufficient to effectua te mean ingful app ellate review.’” Rickm an v. State , 972 S.W.2d

687, 692 (Tenn. Crim. App. 1997) (citing Brown v. State, C.C.A. No. 03C01-9107-

CR-00233, 1992 WL 143878 (Tenn. Crim. App., Knoxville, June 26, 1992); quoting

Watkins v. State, C.C.A. No. 1121, 1989 WL 106974 (Tenn. Crim. App., Knoxville,

Sept. 18, 198 9)).



         Given that the language of § 40-30-211(b) is identical to that in § 40-30-

118(b), we see no reas on to depart from the above reas oning, and a dopt the abo ve

as the correct ap proach to interpretin g violations of § 40-3 0-211(b ). Accordingly, we

turn to the petition and rec ord befo re us to se e if mean ingful app ellate review may

be provided.



         W e are of the opinion that Petition er’s cla ims m ay not b e me aning fully

reviewed. Because the trial court did not address all of the petitioner’s grounds, and

because we canno t deduce from the record the trial cou rt’s findings of fact and

conclusions of law, we must remand the case to the trial court for a complete written

order.



                                             -8-
       To begin , Petition er raise d a tota l of seven issues in his post-conviction

petitions. The trial jud ge ruled two of thos e issues to be pre determ ined. Thus five

issues remain ed: (1) whether trial counsel was ineffective because counsel was

undergoing psychological or substance abuse evaluation during his representation

of Petitioner; (2) whether the trial court erred in giving a jury instruction on

reasonable doub t that did not m eet co nstitutio nal sta ndard s; (3) wh ether tr ial counsel

was ineffective because counsel failed to object to this instruction; (4) whether the

state violated Petitioner’s du e proce ss rights w hen the state failed to identify

witnesses in the indictment whose testimony was pa rt of the state ’s proof-in-c hief;

and (5) wheth er trial counsel was ineffective because counsel failed to locate,

interview, and p resen t alibi witn esse s that w ere av ailable and willing to testify on

behalf of Petitioner.



       The oral disposition of the p etition, however, addresse s one claim– ineffective

assistance of counsel as regards to alibi witnesse s. Because there are no findings

of fact and conclusions of law as regards the four missing issues, we are u nable to

provide any review of the trial court’s determinations on these claims.



       Nor are we a ble to me aningfu lly review the o ne issue that the trial court did

address in disposing of the petition. Petitioner alleges ineffective assistance of

counsel as to procurement of alibi witnesses.             There is, however, conflicting

testimony, and the trial court did n ot state wh ose testim ony it credite d. W e have

noted th is before:

      [w]e cannot discern whether the trial court accredited the testimony of
      the petitioner or his trial attorney. Although it may be possible to infer
      that the trial court accredited the attorney’s testimony, one of the main
      purposes behind requiring an order with findings of fact and
      conclusions of law is to prevent this very type of speculation on appea l.”
Steve E. Tod d v. State , C.C.A. No. 01C01-9612-CR-00503 , 1999 W L 30678 at *4

(Davidson County) (Tenn. Crim. App., Nashville, Jan. 16, 1999) (no Rule 11

applicatio n filed).




                                             -9-
      W e would like to emphasize that the Post Conviction Procedure Act is very

clear as to wha t must be done b y a trial court o n the final d isposition o f a petition:

“the court shall enter a final orde r . . . [and] shall set forth in the order or a written

memorandum of the case all grounds presented, and shall state the findings of fact

and conclusions of law with regard to each such ground.” Tenn. Code Ann. § 40-30-

211(b) (1 997) (em phasis a dded); see also Tenn . Sup. C t. R. 28, § 9 (A).



                                    V. Conclusion



       In summ ary, the trial co urt’s dispo sition of the post-c onviction petition is not

adequate. The oral disposition from the bench and the written judgment do not

address all of Petitioner’s claims, and do not contain sufficient findings of fact and

conclusions of law that provide the grounds for the denial of Petitioner’s ineffective

assistance of counsel claim as to alibi witnesses. As a result, we cannot provide

meaningful appellate review. We vacate the judgment of the trial court and remand

this case for proceedings consistent with this opinion. After the trial court has made

its complete findings of fact and conclusions of law as to each ground, it should enter

another order either granting relief or denying the petition. The appeal process can

then be followed if the aggrieved party so desires.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
NORMA McG EE OGLE, Judge




                                           -10-
