         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        JANUARY SESSION, 1999         March 30, 1999

                                                  Cecil W. Crowson
RICKY J. SUMMERS,           )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9708-CC-00323
                            )
      Appe llant,           )
                            )
                            )    FRANKLIN COUNTY
VS.                         )
                            )    HON. J. CURTIS SMITH,
STATE OF TENNESSEE,         )    JUDGE
                            )
      Appellee.             )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF FRANKLIN COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

RICKY SUMMERS                    JOHN KNOX WALKUP
Pro Se                           Attorney General and Reporter
MCRCF
Wa rtburg, T N 378 87            CLINTON J. MORGAN
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 J. MICHAEL TAYLOR
                                 District Attorney General

                                 STEVEN M. BLOUNT
                                 Assistant District Attorney General
                                 324 Dinah Shore Bo ulevard
                                 Win cheste r, TN 37 398



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       The Defenda nt, Ricky J. Sum mers, app eals the trial court’s order

dismissing his petition for post-conviction relief. On August 23, 19 85, the Circu it

Court for Franklin County found Defendant guilty of first degree premeditated

murder following a jury trial. This C ourt affirm ed his co nviction, State v. Ricky

Summ ers, No. 85-328-III, 1987 WL 16398 (Tenn . Crim. A pp., Nashville, Sept. 4,

1987), and the Tennessee Supreme C ourt de nied p ermis sion to appe al.

Defendant filed a timely petition for post-con viction relief on August 28, 1990,

which was not heard by the trial court until March 26, 1997. The trial court denied

relief, a dec ision that D efenda nt now a ppeals .



       By adden dum to his origina l petition, Defendant argues fifteen assignme nts

of error. These points may be classified as either errors by the trial court or

errors by trial counsel. We find that the alleged errors by the trial court—the first

nine—h ave been waived in this Court because of Defendant’s failure to bring

them on direct appeal.       Tenn. Code Ann. § 40-30-111, -112 (repealed and

replace d by § 40 -30-206 (g)).



       The last five assig nmen ts of error ch arge D efenda nt’s trial attorne ys with

ineffective assistance of counsel. Specifically, Defendant contends that his trial

counsel performed below the standard of competent criminal defens e attorneys

by: (1) failing to sub poen a witne sses and e nsure their pre senc e in co urt for tria l,

(2) failing to raise the defense of intoxication, (3) failing to raise the issue of

mental defect or to seek a comp etency h earing a s to Defe ndant’s c apability to



                                           -2-
form necessary elements of the offense, (4) failing to object to unconstitutional

jury instructions, and (5) failing to move for judgment of acquittal at the close of

the State ’s proof.



       To be entitled to post-conviction relief on the basis of ineffective assistance

of counsel, Defendant must show that his counsel’s representation was

“deficient” and tha t “the deficien t perform ance p rejudiced the defen se.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong,

coun sel’s performance is not deficient when “the advice giv en, or the services

rendered by the attorney, are within the range of competence demanded of

attorneys in criminal cases .” Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5).

The second prong requires Defendant to show a reasonable probability that the

result of the trial would have been different but for the deficient representation.

Strickland, 466 U.S. a t 694. “A reaso nable proba bility is a probability sufficient

to underm ine confidence in the outcom e.” Id.



       With respect to rationalization of attorney condu ct in an ineffective

assistance of counsel case, the Strickland Court ins tructed,

       Judicial scrutiny of counsel’s performance must be highly
       defere ntial. It is all too tempting for a defendant to second-guess
       coun sel’s assistance after conviction or adverse sen tence. . . . A
       fair assessment of attorney perform ance requ ires that every effort
       be made to eliminate the distorting effe cts of hind sight, to
       reconstruct the circumstances of counsel’s challenged conduct, and
       to evaluate the conduct from counsel’s perspective at the time.

Id. at 688.




                                         -3-
                   I. FAILING TO SUBPOENA WITNESSES

         Defendant first alleges that he was “forced to trial with out ha ving his

witnesses presen t” in violation of h is right to due process. According to the

record of the e videntia ry hea ring, D efend ant info rmed his trial c ounsel prio r to

trial about several witnesses who he claims were eyewitnesses to the crime. He

testified that he requested the presence of those witnesses at trial and that the

witnesses were present on one date. H owev er, the tr ial app arently did no t begin

on that day and was instead rescheduled. Although su bpoena s were re-issued,

they app arently we re never s erved, an d trial com menc ed as re -sched uled.



         If afforded a post-conviction evidentiary hearing by the trial court, a

petitioner must do m ore than m erely present evidence tending to show

incompetent representation and prejudice; the petitioner must prove factual

allegations by a prep ondera nce of the evidenc e. Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1974) (s uperse ded by § 40-30-2 10(f) (requiring clear and

convincing evidence)). When an evidentiary hearing is held, findings of fact

made by that court are conclusive and binding on this Court unless the evidence

preponderates against th em. Coop er v. State, 849 S.W.2d 744, 746 (Tenn.

1993) (citing Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0)).



         As noted by this Court in Black v. State, 794 S.W.2d 752 (Tenn. Crim. App.

1990),

                [w]hen a petitioner contends th at trial coun sel failed to
         discover, interview, or present witnesses in support of the defense,
         these witnesses should be presented by the petitioner at the
         eviden tiary hearing. As a general rule, this is the only way the
         petitioner can establish that . . . a known witness was not
         interviewed, . . . or . . . the failure to have a known witness present
         or call the witness to the stand resulted in the denial of critical

                                          -4-
       evidence which inured to the prejud ice of the petitioner. It is
       elementary that neither a trial court nor an appellate court can
       specu late or gues s on the q uestion o f . . . what a witnes s’s
       testimony might have been if introduce d by defe nse co unsel. The
       same is true re gardin g the fa ilure to c all a known witness. In short,
       if a petitioner is able to establish that defense counsel was deficient
       in the investigation of the facts or calling a known witness, the
       petitioner is not entitled to relief from his conviction on this ground
       unless he can produce a material witness who (a) could have been
       found by reasonable investigation and (b) would have testified
       favorably in support of the defense if called.

Id. at 757-58 (emphasis added) (footnote omitted). Defendant failed to present

at his evidentiary hearing the witn esse s he co ntend s sho uld ha ve testifie d at his

trial, and he testified that he cannot now recall the names of these witnesses.

Unde r these circ umsta nces, this Court is c onstraine d to den y relief.



             II. FAILING TO RAISE DEFENSE OF INTOXICATION

       Defendant provides no argument on this issue in his brief. However, a

portion of the pos t-conviction evidentiary hearing was de dicated to the subje ct,

and the trial court found as follows:

       It is apparent from the trial transcript and the testimony of counsel
       at the hearing, a deliberate strategic decision was made at trial not
       to stress intoxication of the defendant. The defense was that the
       petitioner did not commit the crime , not tha t he co uld not remember
       the events because of intoxication or that he could not form a
       culpa ble mental state because of intoxication. Given the strategy of
       the defense, amplifying the issue of intoxication likely could have
       been counter-productive by damaging the credibility of the
       defend ant. The tactics adopted at trial should not now be second-
       guess ed by hin dsight.

W e agree . The c ourts o f this sta te have long “re cogn ized th at it is not our

function to ‘second-guess’ tactical and strategical choices pertaining to defense

matters or measure a defense attorney’s representation by ‘20-20 hindsigh t’

when deciding the effectiveness o f trial counsel.” Coop er v. State, 849 S.W.2d

744, 746 (Tenn. 1993) (quoting Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 19 82)).



                                          -5-
The record of the post-conviction hearing does not preponderate against the trial

court’s find ings.



             III. FAILURE TO RAISE ISSUE OF MENTAL DEFECT
                    OR TO SEEK COMPETENCY HEARING

       Defendant again failed to support this contention in his brief; nevertheless

we will address the argument as it is characterized in the transcript of the

evidentiary hearing. On this issue, the trial court found,

       Both [of Defendant’s trial counsel] testified at the hearing that
       petitioner cooperated with them fully in trial preparation and was
       comp etent. The trial transcript doe s not reflect any inability on
       petition er’s part to understand questions or communicate.
       Apparen tly, petitioner bases his need for a mental evalua tion on his
       claim he was addicted to drugs and alcohol for many months prior
       to the incident. Petitioner w as in jail from his arrest in M arch until
       the trial in August. Even though no credible testimony was
       presented at the hearing petitioner was abus ing substanc es before
       incarceration to the extent he was incompetent during his jail stay or
       at trial, he certain ly had am ple time to “dry out” during his
       incarcer ation.

Defendant did not pre sent an y testimo ny, expert o r otherwise, at the post-

conviction hearing tending to prove by a preponderance of the evidence that he

was not mentally competent to stand trial. The typical statement by Defendant

in suppo rt of this claim is as follows: “It’s hard for me to talk and to keep things

on my m ind. If I’m telling yo u a jok e, I’ll get right in the m iddle of it and forget.

Tha t’s the reason there’s no way that I could commit a first degree murder.” The

post-conviction transcript s upports the finding of the pos t-conviction court;

therefore , this issue la cks m erit.




                                           -6-
             IV. FAILURE TO OBJECT TO JURY INSTRUCTIONS

       Defendant argues that his trial cou nsel were ineffective for failing to object

to those jury instructions that, in the first part, he contended were error by the trial

court. W e find n o ineffe ctive as sistan ce by D efend ant’s tria l coun sel.



                                A. Definition of Malice

       Defendant argues that coun sel were ineffective for failing to object when

the trial court omitted a definition of “malice” from the jury instructions for first

degree murder.       On page 1094 of the jury charge, which Defendant has

appended to his resp onse b rief, we find, “F or you to find the defendant guilty of

murder in the first d egree as cha rged in the first coun t of the indictm ent, the S tate

must have proven beyond a reasonable doubt . . . that the killing was malicious,

that is, that the defendant was of the state of mind to do the alleged wrongful act

without legal justificatio n or excu se.” In add ition, Defen dant co ncede s that the

court defined “ma lice” in its instruction for second degree m urder. We therefore

find no de ficiency or p rejudice.



                              B. Definitio n of Delib erate

       Defendant next argues that co unse l shou ld have o bjecte d to the allege dly

incom plete definition of “deliberate” given by the trial court.           According to

Defen dant, the trial court charged only that deliberate means “with a cool

purpos e.” Defend ant doe s not, how ever, pres ent an a lternate de finition, state

reasons why the charged instructed was deficient, or provid e any la w hold ing this

instruction erroneous.      This Court has previously held this definition to be

sufficient. State v. Greg Baine, No. 03C01-9202-CR-00043, 1992 WL 151403,

at *2 (Tenn. Crim. App., Knoxville, July 2, 1992) (“No special request was made

                                           -7-
attempting to have the trial court define the term <coolness of purpose,’ and we

are unable to find any error with the trial court’s failure to do so.”)



                             C. Presumption of Malice

      In this argum ent, Defendant asserts that his counsel should have objected

to two jury instruc tions th at alleg edly shifted the burden of proof by creating a

presum ption of m alice. The first challeng ed instruc tion read s,

      [I]f a deadly weapon is handled in a manner so as to make the killing
      a natural or probable result of such conduct, then there is raised an
      inference of malice sufficient to support a conviction for murder in
      the seco nd de gree u nless it is rebutted by other facts and
      circumstances. A deadly weapon is any weapon or instrument
      which from the manner in which it is used or attempted to be used
      is likely to produce death or great bodily harm.

Because the jury convicted Defendant of first degree murder, rather than second

degree murder, we find no prejudice even if failure to object constituted deficient

perform ance o f counse l.



      The next instruction allegedly read as follows,

      [T]he use of a dead ly weapo n by a pa rty who as saults an other with
      intent to commit murder in the first degree raises a presumption of
      malice, unless rebutted by other facts and c ircumstances to the
      contrary.

W e find this instruction to be constitutional under State v. Bolin, 678 S.W.2d 40

(Tenn. 1984). In Bolin, the supreme court held that this instruction did not

unco nstitutio nally relieve th e State of its bu rden to prove beyon d a rea sona ble

doubt each element o f the offens e. Id. at 44. That court stated, “The words of

the presumption, the immediate conte xt in whic h they a ppea r, and th e over all

context of the jury instructions, remove this case from th e due process trap

adjudicated in Sandstrom [v. Montana, 442 U.S. 510 (1979 )], in our opinion.” Id.



                                         -8-
at 42. From a survey of the jury instructions provided by Defendant in this case,

we similarly find that the instruction as given did not offend due process.



       Furthermore, we find that eve n if the instructions we re errone ous, th ey did

not have “‘substantial and injurious effect or influence in determining the jury’s

verdict .’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). Therefore, Defendant’s trial counsel

did not provide ineffective assistance by failing to object to the instruction s.



                                 D. Reasonable Doubt

       Defe ndan t’s final jury instruction argument complains that the “moral

certainty” charg e given by the tr ial cou rt perm itted the jury to find guilt on a

quantum of evidence less than the constitutionally required beyon d a rea sona ble

doubt standa rd. He contends that he suffered ineffective assistance of counsel

by his attorn eys’ failure to object to th is instruction .



       The courts of this sta te have cons istently h eld this particular jury instruction

to be constitutionally permissible; hence, the failure to object is not ineffective

assistance of couns el. See Carter v. State, 958 S.W.2d 620 (T enn. 19 97); State

v. Nicho ls, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263,

266 (Tenn . Crim. A pp. 199 5); Pettyjo hn v. Sta te, 885 S.W.2d 364, 365 (Tenn.

Crim. App. 19 94); State v. Hallock, 875 S.W .2d 285, 294 (Tenn. Crim. App.

1993); State v. Rodney Corley, No. 01C01-9608-CR-00336, 1997 W L 535315,

at *2 (Tenn. Crim. App., Nashville, Sept. 2, 1997), perm. to appeal denied (Tenn.

1998); Kenn eth Cu lp v. State, No. 02C01-9608-CC-00268, 1997 WL 414397, at

*2-*3 (Tenn. Crim. A pp., Jack son, July 2 4, 1997 ); Terry Sha nnon Kim ery v. State,

                                            -9-
No. 03C0 1-9512 -CC-0 0412, 1 997 W L 3114 3, at *4-*5 (T enn. C rim. App .,

Knoxville, Ja n. 28, 199 7), perm. to appeal denied (Tenn . 1997).



                           V. JUDGMENT OF ACQUITTAL

       Finally, Defendant argue s that his co unsel w ere ineffec tive for failing to

move for a judgm ent of acq uittal at the clo se of the S tate’s proo f. The po st-

conviction court fo und th at “[i]n ligh t of the e videnc e at trial, petitioner suffered no

prejudice” by counsel’s action . In add ition, the court s tated, “T here w as am ple

evidence to support a finding petitioner killed the victim in a malicious,

premed itated, and delibera te fashion.”



       In order to conclude that Defendant suffered ineffective assistance of

counsel due to a failure by co unsel to mo ve for judgme nt of acquittal, this Court

must find that the evidence was not sufficient to sup port the jury’s ve rdict. T his

we decline to do, because the issue has been previous ly determ ined. See State

v. Ricky Sum mers, No. 85-328-III, 1987 WL 16 398, at *4-*7 (Tenn . Crim. A pp.,

Nash ville, Sept. 4, 1 987). T his issue lacks m erit.



       Because we conclude that none of Defendant’s issues require reversal of

his conviction, we affirm the judgment of the trial court dismissing his petition for

post-co nviction relief.




                                     ____________________________________
                                     DAVID H. WELLES, JUDGE




                                            -10-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                             -11-
