         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 2, 2003

           GABRIEL ANTONIO CLARK v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Madison County
                          No. C-03-22     Roy B. Morgan, Judge



                    No. W2003-01017-CCA-R3-PC - Filed March 24, 2004


Gabriel Antonio Clark appeals from the Madison County Circuit Court’s denial of his petition for
post-conviction relief. Because we agree with the lower court that the petitioner failed to prove his
allegations by clear and convincing evidence, we affirm.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER, JJ., joined.

Benjamin C. Mayo, Jackson, Tennessee, for the Appellant, Gabriel Antonio Clark.

Paul G. Summers, Attorney General & Reporter; Braden H, Boucek, Assistant Attorney General;
James G. Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                            OPINION

                The petitioner is presently serving a consecutive sentence of life plus 12 years for
convictions of felony murder and aggravated robbery. See State v. Gabriel Antonio Clark, No.
W2000-02595-CCA-R3-CD (Tenn. Crim. App., Jackson, Sept. 7, 2001), perm. app. denied (Tenn.
2002). He filed a pro se post-conviction petition in which he alleged that he had not received the
effective assistance of counsel in the conviction proceedings and that he had not received due
process because the jury was not instructed with certain lesser included offenses. The petitioner
thereafter obtained the assistance of counsel, through whom he filed an amended petition which
detailed the petitioner’s constitutional complaints with regard to the uncharged lesser included
offenses.

               The lower court conducted a hearing, at the beginning of which the state sought
dismissal of the petition because the petitioner had not set forth an allegation that the issues
presented were not waived despite not having been raised in earlier proceedings. The petitioner’s
counsel answered the state’s challenge by characterizing the lesser included offense issue as one
falling under the umbrella of ineffective assistance of counsel. The lower court denied the state’s
motion, and the matter proceeded to hearing. At the close of the hearing, the lower court denied
relief. The lower court’s order denying relief addressed the jury instruction issue both as one of
ineffective assistance of counsel and as one of free-standing constitutional error. The court found
that the petitioner failed to carry his burden of proof with respect to the ineffectiveness claim and
that any error in the jury instructions given was harmless. The petitioner then filed the present
appeal.

                 In his appellate brief, the petitioner does not pursue an ineffective assistance of
counsel claim. Rather, he raises free-standing constitutional claims with respect to the failure of the
trial court to instruct the jury on certain lesser included offenses. However, in his reply brief to this
court, he again raises the ineffectiveness issue. We will consider the jury instructions claim as both
a free-standing constitutional issue and as an allegation of ineffective assistance of counsel.

                 We consider first whether the state correctly posits that the defendant has waived the
issue as one of free-standing constitutional error because the issue was not presented in the
petitioner’s direct appeal of his conviction. Subject to certain exceptions not pertinent in this case,
the Post-Conviction Procedure Act bars consideration of any claim that could have been, but was
not, presented in an earlier proceeding. See Tenn. Code Ann. § 40-30-106(g) (2003). The petitioner
did not raise a jury instruction challenge on direct appeal. Thus, we conclude that the issue is waived
as one of free-standing constitutional error. See State v. Townes, 56 S.W.3d 30, 38 (Tenn. Crim.
App. 2000) (failure to give lesser included offense instruction issue waived in post-conviction
proceeding because not raised in earlier direct appeal), overruled on other grounds by State v. Terry,
118 S.W.3d 355, 358 (Tenn. 2003).

                We then move on to the state’s argument that the issue, whether one of free-standing
constitutional error or ineffective assistance of counsel, is waived because the trial transcript
containing the jury instructions is not in the appellate record. On that point, we disagree with the
position taken by the state. Although the jury instructions are not in the appellate record of this
proceeding, we are empowered in this situation to take judicial notice of the appellate record from
the petitioner’s prior direct appeal. See, e.g., Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987).

                 Thus, we will consider the issue on its merits, having noticed the record of the prior
direct appeal.

                When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance
that falls below the range of competence demanded of attorneys in criminal cases. Bankston v. State,
815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for
deficient representation, the outcome of the proceedings would have been different. Overton v.


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State, 874 S.W.2d 6, 11 (Tenn. 1994). Failure of proof of either prong is fatal to an ineffective
assistance of counsel claim. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). On review, there is a strong presumption of satisfactory
representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

                 We see no basis for disturbing the lower court’s ruling that the petitioner failed to
carry his burden of proof on the ineffectiveness claim. At trial, the questions of the defendant’s guilt
of first degree felony murder and aggravated robbery were submitted to the jury. For the first degree
murder count, the trial court instructed the jury on the lesser included offenses of facilitation of first
degree murder, second degree murder, and facilitation of second degree murder. For the aggravated
robbery count, the trial court instructed the jury on the lesser included offense of facilitation of
aggravated robbery. The petitioner claims that the court should have included instructions on the
lesser included homicide offenses of reckless homicide and criminally negligent homicide and the
lesser included robbery offenses of simple robbery and theft. He further posits that counsel’s failure
to object to the incomplete instructions given at trial and failure to raise the issue on appeal
amounted to ineffective assistance of counsel.

                 With respect to the homicide count, any error of the trial court in not giving
instructions on reckless homicide and criminally negligent homicide must be characterized as
harmless. See generally State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). The jury was
instructed on lesser included offenses which fall in the hierarchy between the charged offense of
felony murder and the offenses the petitioner claims should have been charged, and it returned a
verdict of the charged offense. The jury having rejected the intervening charged offenses in favor
of the greatest offense charged, it is not logical that the jury would have found the defendant guilty
of the still-lesser offenses that were not charged. See generally id. Thus, any error must be
categorized as harmless beyond reasonable doubt. See State v. Allen, 69 S.W.3d 181, 191 (Tenn.
2002); State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001); Williams, 977 S.W.2d at 106. It follows, then,
that any deficient performance on trial counsel’s part in failing to request lesser included offense
instructions cannot be labeled prejudicial in the sense required to establish ineffective assistance of
counsel.

               The remaining issue concerns the lesser included offense instructions for the
aggravated robbery charge. On this charge, no offenses fell between the principal offense and the
offenses the petitioner claims should have been charged. We conclude, however, that any error was
harmless beyond a reasonable doubt, and that the petitioner failed to establish prejudice as an
element of his ineffective assistance of counsel claim.

               The law confers a duty on the trial judge to instruct the jury as to the law of a lesser
included offense if he or she determines that: (1) reasonable minds could accept the offense as lesser
included; and (2) the evidence is legally sufficient to support a conviction for the lesser included
offense. State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999); see also State v. Langford, 994 S.W.2d
126, 128 (Tenn. 1999). Both of those prerequisites are met in this case. See generally State v.



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Gabriel Antonio Clark, slip op. at 1-5 (petitioner’s direct appeal). Thus, failure to give the
instruction was error. See generally Burns, 6 S.W.3d at 469.

                That said, however, we are not prepared to find such error would have been
reversible. Although the jury could have found the petitioner guilty of one of the lesser included
offenses, no reasonable jury would have done so given the facts of this case. See State v. Locke, 90
S.W.3d 663, 675 (Tenn. 2002). The defendant claimed he was an unfortunate victim of
circumstance in that he got into a car unaware that the other occupants planned to commit a robbery.
See Gabriel Antonio Clark, slip op. at 2. Factually, there was no question whether a deadly weapon
was used and whether the victim suffered serious bodily injury, those facts constituting the elements
of aggravated robbery which elevate the offense from that of simple robbery. See Tenn. Code Ann.
§ 39-13-402 (2003); Gabriel Antonio Clark, slip op. at 3 (evidence established that victim died from
multiple gunshot wounds). Thus, the trial court’s lack of instruction on the lesser included offenses
of robbery and theft, even if error, was harmless beyond a reasonable doubt. See Locke, 90 S.W.3d
at 675. In the absence of harmful error, we are unpersuaded that trial counsel’s performance may
be deemed ineffective.

               For these reasons, we affirm the judgment of the lower court denying post conviction
relief.



                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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