            IN THE COURT OF CRIMINAL APPEAL OF TENNESSEE
                             AT JACKSON
                        AUGUST 23, 2002 Session

           JERRY NEAL CARPENTER V. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Knox County
                        No. 47388 Richard R. Baumgartner, Judge



                              ___________________________

                                No. E2001-01732-CCA-R3-PC
                 _________        __November 20, 2002________________


The Petitioner Jerry Neal Carpenter appeals from the order of Knox County Circuit Court
denying his petition for post-conviction relief. The post-conviction court dismissed Carpenter’s
petition, finding that the only claim alleged, i.e., the ineffectiveness of counsel, was without
merit. In this appeal as of right, Petitioner challenges the lower court’s ruling. We affirm the
judgment of the post-conviction court. All members of the panel are sitting by designation.

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

Lloyd Tatum, Special Judge, delivered the opinion of the court, in which, Special Judges David
Farmer and Frank Crawford, joined.

Mark E. Stephens, District Public Defender, John Halstead, Assistant Public Defender;
Knoxville, Tennessee, for the appellant, Jerry Neal Carpenter.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney general;
Randall E. Nichols, District Attorney General, and Marsha L. K. Selecman, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                         OPINION

       The petitioner, Jerry Neal Carpenter, was indicted by the Knox County Grand Jury on the
offenses of first-degree premeditated murder, first-degree felony murder, and robbery. Although
he was ultimately acquitted of premeditated murder and robbery, Petitioner was convicted of
felony murder committed in the perpetration of a robbery and, on December 17, 1987, was
sentenced to a term of life imprisonment. His conviction and sentence were affirmed on direct

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appeal to this Court. See State v. Carpenter, 773 S.W.2d1 (Tenn. Crim. App. 1989), perm. to
appeal denied, (Tenn, May8, 1989), reh’g denied, (Tenn. June 27, 1989).

The direct appeal opinion provides the following synopsis of the evidence at Petitioner’s trial:

        “Myrtle Chapman, the operator of Myrt’s Package Store, was found dead at her place of
business on Clinton Highway in Knox County on March 25, 1985, shortly after 7:00 P.M. She
had been struck repeatedly with a sharp object. Blood spatters were found throughout the store.
The Knox County Medical Examiner testified that there were approximately ten deep lacerations
to the head and face of the victim. His opinion was that a hatchet could have been used to inflict
the wounds.

        A bank bag found next to the cash register was open and empty. Three adding machine
tapes and a bank deposit slip were found on the counter near the bank bag or on the floor.

       The victim’s husband, J.D. Chapman, testified that his wife had discovered money
missing from the bag on the morning of the offense as she prepared to make her bank deposit.
He stated that on the day before, a Sunday, the only persons who had been behind the counter,
where the money was generally kept, were his two nephews, John and Jack Head, and the
defendant.

       Shortly after he discovered the loss, Chapman asked the defendant if he had taken the
money on the previous day. The defendant denied he had done so, volunteered to take a lie
detector test, and offered not to return to the premises. The amount missing from the previous
day was determined to be $270.00

        At 5:45 P.M. on the day of the murder, the defendant was observed in the package store
telling the victim that he had cut himself under the left eye. After he made a telephone call,
however, he left.

        Imogene Smith testified that she talked by telephone to the victim on the afternoon of
March 25th. The victim advised her that she would have to hang up because “that little son-of -a-
bitch is coming back in the store.” When Smith asked if she was talking about “the guy who
stole your money,” the victim replied affirmatively. Smith related that the victim had told her
during a phone conversation earlier in the day that she suspected that the defendant was the thief
and informed him that she was going to have the money bag fingerprinted. The trial court
admitted into evidence the victim’s statements in the last telephone conversation as statements
within the present sense impression exception to the hearsay rule.

       Darrell Waddell, the defendant’s first cousin, testified that he saw the defendant receive a
cut under his left eye on the afternoon of March 25th. Between 5:30 and 6:00 P.M., the
defendant went to the victim’s place of business for a Band-aid and cold drinks. After Waddell
and the defendant finished some chores at a nearby furniture store, the defendant announced that
he was returning to Myrt’s to get something else to drink.

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       Dean Herrell arrived at the furniture store just before the defendant returned at about 6:30
P.M. At that time, the defendant carried his beige jacket under his arm. Each of the three then
took hits of LSD. Before the defendant left with Herrell, Waddell arranged to pick him up at an
apartment. When Waddell arrived, he noticed that the defendant had dark spots on his jeans
which appeared to be blood. The defendant changed clothes when they arrived at his residence.
Waddell also heard the furnace door open and close when the defendant went downstairs.

       Waddell and the defendant passed by Myrt’s Package Store after they left the residence.
When Waddell saw the police cars and asked what was going on, the defendant said, “I think
I’ve hurt J.D. (Chapman). Me and J.D. got in a fight.” When Waddell stopped for gas later, the
defendant said he would pay and pulled out several bills, including 5’s, 10’s, and 20’s. When
asked where he had gotten the money, the defendant replied, “Darrell, I think I’ve killed Myrt.”
He then said, “She seen me getting into her money bag.” The defendant told Waddell that Myrt
hit him on the head with a stick. After they attended an auction that evening, the defendant
asked Waddell not to “tell on me… If you don’t tell nobody, nobody won’t know.”

       Waddell then related that a handheld hatchet kept at a woodpile near the furniture store
had disappeared between Sunday, March 24th, and Monday, March 25th. He testified that he had
looked for the hatchet since then but had never found it.

        Herrell said that he noticed a knot on the defendant’s head when he arrived at the
furniture store on the afternoon of March 25th. After Herrell gave the defendant a ride, the
defendant paid for his gas. He saw the defendant throw the vest jacket he carried underneath his
arm into a dumpster. Herrell said that he detected the brown splotches on the defendant’s pants.
After he threw the jacket into the trash, the defendant told Herrell he thought he had killed
someone. Alter Herrell dropped the defendant off, he noticed a one and one-half foot long
hatchet left on the floorboard of his car. It was stained by the same brown color on the
defendant’s pants. Herrell threw the hatchet into a lake but never told anyone about it until the
day of the trial. Herrell admitted to a drug addiction and sought treatment several months after
the incident.

       Detective Mike Lett, after conducting interviews of certain witnesses, found the
defendant’s shirt and vest in the trash dumpster. After acquiring a search warrant for the
defendant’s residence, he searched the ashes of the defendant’s furnace. He found several metal
pieces which could have come from burned jeans.

       A serologist who made an analysis of the shirt and vest found blood stains consistent
with that of both the defendant and the victim. He found blood on the victim’s glasses which
was consistent with that of both the victim and the defendant.

        A metallurgist testified that the metal pieces from the ashes were rivets and fastners
similar to those used in the garment industry to make jeans.



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       Defense presented three witnesses. Charles Cox testified he saw a blue truck parked at
Myrt’s Package store on March 25th. The time was established at 6:00 to 6:15 P.M. by Bernice
Nance.

        The defendant’s mother testified that she usually obtained the clothes she wore at yard
sales or from donations. She said she commonly burned any clothes that she could not use in her
basement furnace.”

        In this post conviction case, the Petitioner originally assigned several issues, but prior to
the post conviction hearing in the trial Court, the Petitioner conceded that the only issue for
consideration was whether the Petitioner was denied the effective assistance of counsel on direct
appeal due to the failure of his attorneys to raise the issue of whether the trial court erred by
failing to instruct the jury as to the offense of second degree murder. The record reveals that
trial Counsel requested the trial Court to charge the jury as to second degree murder which was
declined by the trial Court. Counsel for the Petitioner did not raise this as an issue on direct
appeal. The Post Conviction Court found that under the law in effect at the time of the trial,
there was no legal basis upon which to mandate a charge of second degree murder as a lesser
included offense of felony murder and that therefore counsel was not deficient for failing to raise
the issue on direct appeal from his conviction for felony murder.

         At the post conviction hearing, the attorneys for the Defendant at trial and on appeal both
testified. The record reveals that they are well qualified and experienced criminal lawyers,
specifically they have extensive experience in homicide cases. Most of their testimony was their
recollection of the evidence at trial. However, we granted the Petitioner’s motion to take judicial
notice of the trial record and we have reviewed the trial record which is comprised of
approximately twelve (12) volumes. Defense attorneys testified that they presented six (6)
issues to this court on direct appeal and four (4) of the issues were found to have merit, but that
the errors committed at trial were harmless. Counsel testified that they did not want to clutter
their appeal with frivolous issues and they did not think that a charge of second degree murder
was appropriate because of the lack of proof of second degree murder. The Assistant District
Attorney General that prosecuted this case stated that he considered asking for the death penalty,
but did not seek the death penalty because of the defense counsel’s success in getting a
confession made by the Petitioner surpressed.

        To sustain a petition for post conviction relief filed prior to 1995, a defendant must prove
his or her factual allegations by a preponderance of the evidence at an evidentiary hearing. See
Davis vs. State, 912 S.W. 2d 694, 697 (Tenn. 1995). Upon review, this court will not reweigh or
reevaluate the evidence below; all questions concerning the creditability of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to
be resolved by the trial judge, not the appellate courts. Momen vs. State, 18 S.W. 3d 152, 156
(Tenn. 1999). The issue of ineffective assistance of counsel presents mixed questions of law and
fact, we reviewed this issue de novo, with a presumption of correctness given only to the post-
conviction courts finding of fact. Fields vs. State, 40 S.W. 3d 450, 458 (Tenn. 2001). Both the
Sixth Amendment to the United States Constitution and Article I § 9 of the Tennessee
Constitution guarantee the Defendant the right to representation by counsel. State vs. Burns, 6
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S.W. 3d 453, 461 (Tenn. 1999). To determine whether counsel provided effective assistance at
trial, the court must decide whether counsel’s performance was within the range of competence
demanded of attorneys in criminal cases. Baxter vs. Rose, 523 S.W. 2d 930, 936 (Tenn. 1975).
When reviewing a claim that counsels failure to raise an issue on appeal amounted to a deficit
performance or result in prejudice to the Defendant, a determination as to the substance of a
claim is essential. See Kimmelman vs. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91
L. ed. 2d 305 (1986) (To prevail on ineffectiveness of a claim involving counsels failure to raise
legal issue on appeal, Defendant must show that issue has merit). Since the Petitioner claims
that his counsel was ineffective by failing to raise the issue of a lesser included instruction on
direct appeal, we must consider the merits of the issue to determine whether the issue would
have warranted relief if brought on direct appeal, and therefore whether his counsel’s failure to
raise this issue resulted in prejudice to the Petitioner.

        As previously stated, the trial court denied a request by the defense to charge the jury on
second degree murder as a lesser included offense to first degree murder. Trial counsel did not
present this as an issue on direct appeal. The Petitioner insist that this is reversible error as he
was entitled to an instruction on second degree murder as a lesser included offense to first degree
murder under T.C.A. § 40-2518 (now repealed,) and replaced by T.C.A. § 40-18-110(a). The
statute places a duty on trial judges in criminal prosecutions of any felony wherein two or more
grades are included in the indictment, to charge the jury as to all of the law of each included
offense in the indictment.

       In State vs. Atkins, 681 S.W. 2d 571 (Tenn. Crim. App. 1984), certiorari denied 105 S.
Ct. 1395, 84 L. ed. 2d 784, it was held: If there is evidence reasonable minds could accept as to
any such lesser offenses, the accused is entitled to appropriate instructions regarding the lesser
offenses. Johnson vs. State, 531 S. W. 2d 558 (Tenn. 1975); T.C.A. § 40-18-110(a). However,
the practice of charging lesser included offenses where there is no evidence to support them, is
not favored. State vs. Mellons, 557 S. W. 2d 497 (Tenn. 1977); Whitwell vs. State, 520 S. W. 2d
338 (Tenn. 1975).

         The above rule was applied in State vs. King, 718 S. W. 2d 241, 245 (Tenn. 1986),
wherein a defendant was indicted for both premeditated murder and felony murder. The jury
convicted of felony murder only. The trial judge did not charge the jury with respect to second
degree murder, but charged only first degree premeditated murder and felony murder. Similarly,
the above rule was applied in State vs. Vann, 976 S. W. 2d 93, 100-101 (Tenn. 1998). The
defendant was charged with both first degree premeditated murder and felony murder, but the
trial judge gave no instructions on the lesser offense of second degree murder. The defendant
was convicted of felony murder only. The Supreme Court held that the trial court did not err in
failing to change second degree murder as there was no evidence of second degree murder.

        The Defendant did not testify in this case and offered no evidence contradicting the
state’s evidence, including the testimony of the witnesses Harrell and Waddell.

       The Petitioner argues that his conviction for the killing committed in the perpetration of
robbery and his acquittal of the count charging him with robbery is inconsistent. However, the
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verdict on a multiple-count indictment does not have to be consistent as to each count. State vs.
Allen, 692 S. W. 2d 651 (Tenn. Crim. App. 1985). Moreover, the verdict acquitting the
Petitioner of robbery is not in contemplation of law inconsistent with the finding of guilt as to
the felony murder count. The Constitutional provisions prohibiting double jeopardy would
prohibit a conviction of both robbery and murder in the perpetration of robbery. State vs. Norris,
684 S. W. 2d 650 (Tenn. Crim. App. 1984).

        The Petitioner further points out that there was considerable evidence at trial impeaching
the testimony of the witnesses Herrell and Waddell. We must observe however, that there was
abundant uncontradicted evidence supporting the testimony of these witnesses and none
contradicting it. In any event, the creditability of witnesses is determined by the jury and not
appellate courts.

        The Petitioner also argues that since the jury was out seven (7) hours in deliberation that
it indicates difficulty in deciding this case. We will not speculate on what the jury was doing
during seven (7) hours in deliberation considering this evidence consisting of approximately
twelve (12) volumes. The length of time that a jury deliberates has no bearing on the strength or
correctness of their conclusions or the validity of their verdict. Anglin vs. State, 553 S. W. 2d
616 (Tenn. Crim. App. 1977).

        The uncontradicted evidence supports the finding of the jury that the defendant was
guilty of felony murder. There was no evidence at trial that the Petitioner was guilty only of
second degree murder or other lesser offense. It results that we find that the trial judge did not
commit error in refusing to instruct the jury on second degree murder and that the Petitioner’s
counsel did not commit error in failing to assign this as an issue on appeal to this court.

        The judgment of the court in denying the Petitioner post-conviction relief is affirmed.



                                                     _______________________________
                                                     SENIOR JUDGE F. LLOYD TATUM




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