                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                  September 4, 2003 Session

            JERRY NEAL CARPENTER v. STATE OF TENNESSEE

                  Appeal by Permission from the Court of Criminal Appeals
                             Criminal Court for Knox County
                       No. 47388    Richard R. Baumgartner, Judge



                    No. E2001-01732-SC-R11-PC - Filed January 13, 2004




FRANK F. DROWOTA , III, C.J., concurring.

        I fully agree with the majority’s conclusion that the petitioner, Jerry Neal Carpenter, has
failed to establish his claim of ineffective assistance of appellate counsel. I do not agree fully
with the majority’s analysis of this issue, however, and write separately to explain the basis of
my concurrence.

        The majority opinion accurately sets out the law governing claims of ineffective
assistance of counsel. Courts evaluating such claims must determine: (1) whether counsel’s
performance was deficient; and (2) whether the defense was prejudiced by the alleged deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the post-conviction
petition in this case was filed prior to 1995, Carpenter must establish by a preponderance of the
evidence both deficient performance and prejudice, and his claim will not succeed if he fails to
establish either. See King v. State, 989 S.W.2d 319, 323 (Tenn. 1999). When evaluating claims
of ineffective assistance of counsel, appellate courts apply de novo review with a presumption of
correctness given the trial court’s findings of fact. Fields v. State, 40 S.W.3d 450, 457 (Tenn.
2001).

        Applying these familiar standards, I conclude that Carpenter’s claim of ineffective
assistance of appellate counsel must fail because he has failed to establish deficient performance.
The trial record clearly illustrates that the defense strategy was to obtain an acquittal of the
charges by raising reasonable doubt in the minds of the jurors. The prosecution was based
entirely upon circumstantial evidence. Carpenter’s trial counsel attempted to undermine the
prosecution’s case-in-chief by meticulously offering alternative innocent explanations for the
circumstantial evidence. For example, to counter Darrell Waddell’s testimony that, on the day of
the murder, Carpenter went to the basement after changing his clothes and that the furnace door
opened and closed while Carpenter was in the basement, defense counsel offered the testimony
of several witnesses, including Waddell, indicating that Carpenter routinely assisted his mother
each afternoon by stoking the fire in the furnace prior to her arrival home from work. To counter
the prosecution’s evidence that a search of Carpenter’s furnace yielded several metal rivets and
fasteners similar to those used in the garment industry to make blue jeans, defense counsel called
Carpenter’s mother who testified that she routinely purchased boxes of used clothing and burned
in the furnace items of clothing she was unable to wear. To counter the testimony that
Carpenter’s clothing had appeared to be spotted with blood on the day of the murder, defense
counsel repeatedly pointed out that Carpenter had himself sustained an injury on the afternoon of
the murder and that several witnesses had seen the defendant bleeding from the injury.

        Defense counsel also spent a great deal of time during the trial cross-examining and
impeaching two of the prosecution’s most important witnesses: Darrell Waddell and Gregory
Dean Herrell. On cross-examination, these witnesses admitted that they had been friends for
many years, that they also had been drug addicts for many years, that they had purchased and
consumed LSD on the day of the murder, that they previously had stolen money to support their
drug habits, and that they previously had given many conflicting statements to the police about
this murder. To further cast suspicion on Waddell and Herrell, defense counsel called a witness
who testified that he had driven past Myrt’s near the time the prosecution alleged the murder had
been committed and that he had seen a truck parked by the store matching the description of the
truck driven by Waddell. This witness had not seen Carpenter or anyone else leaving Myrt’s on
foot.

        Against this factual background, defense counsel asked the trial court to instruct the jury
on lesser-included offenses, but counsel decided not to challenge the trial court’s refusal to do so
on appeal. As the majority points out, at the time of Carpenter’s appeal, this Court’s most
recently published opinion addressing an appellate challenge to a trial court’s refusal to provide
instructions on lesser-included offenses was State v. King, 718 S.W.2d 241 (Tenn. 1986). In
King, this Court stated:

       The record shows that [the] defendant was indicted for both common law murder
       and two counts of felony murder, and all counts were submitted to the jury for
       decision. Anytime a court instructs a jury in a homicide case, he [sic] should
       instruct all lesser included offenses and in most instances it is error not to do so.
       But where the evidence clearly shows that [the] defendant was guilty of the
       greater offense, it is not error to fail to charge on a lesser included offense. State v.
       Mellons, 557 S.W.2d 497 (Tenn. 1977); Johnson v. State, 531 S.W.2d 558, 559
       (Tenn. 1975); State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981). In
       this case the record of the guilt phase of the trial is devoid of any evidence which
       would permit an inference of guilt of second-degree murder or the other lesser
       included offenses. The State’s proof of premeditation and deliberation, and the
       fact that the killing occurred during the commission of a felony, which includes
       the defendant’s confessions to Childers and to the police, was uncontradicted.
       Consequently, we find no prejudicial error in the trial judge’s refusal to instruct
       the jury on the elements of murder in the second degree.


                                                 -2-
718 S.W.2d at 245 (emphasis added).

        As the majority correctly recognizes appellate counsel are not constitutionally required to
raise every conceivable issue on appeal. King v. State, 989 S.W.2d 319, 334 (Tenn. 1999);
Campbell v. State, 904 S.W.2d 594, 596-97 (Tenn. 1995). Indeed, this Court previously has
commented that “experienced advocates have long ‘emphasized the importance of winnowing
out weaker arguments on appeal and focusing on one central issue if possible, or at most a few
key issues.’” Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993) (quoting Jones v. Barnes, 463
U.S. 745, 751 (1983). Courts evaluating claims of ineffective assistance of appellate counsel
must afford considerable deference to counsel’s choices regarding issues for appeal and should
not second-guess or judge counsel’s choices in the distorting light of hindsight. Campbell, 904
S.W.2d at 597.

        Applying these standards to trial counsel’s decision to not appeal the trial court’s refusal
to instruct on lesser-included offenses, I have no hesitation in concluding that the choices made
by appellate counsel in this case were reasonable and within the range of competence of attorneys
in criminal cases. As previously stated, defense counsel’s aim at trial was to obtain an acquittal,
not to convince the jury that Carpenter was guilty only of a lesser-included offense, such as
second degree murder. Indeed, the jury heard no evidence indicating that Carpenter was guilty
only of second degree murder or of another lesser homicide. As defense counsel testified at the
hearing on the post-conviction petition: “I don’t think the proof, under any view of it, justified a
determination that it was not first degree murder, but was second degree murder.” In light of the
proof in the record, and this Court’s then-recent pronouncement in King, counsel decided not to
raise on appeal the trial court’s refusal to instruct on lesser-included offenses. This decision, in
my view, was reasonable.

        The majority states that the language in King “apparently has been a source of
misunderstanding as to when lesser-included offense instructions must be given.” Whatever
misunderstanding this language may have engendered in more recent years, at the time of
Carpenter’s appeal – the time pertinent to the issues in this appeal – the law was clear and as
stated in King. In sum, King stood for the proposition that an appellate challenge to a trial
court’s refusal to instruct on lesser-included offenses was likely to be unsuccessful where the
evidence clearly showed that the defendant was guilty of the greater offense, and the record was
devoid of evidence that would permit an inference of guilt of second degree murder or another
lesser included offense.1 Furthermore, any recent misunderstanding of King related only to its

         1
           Indeed, this rule was applied as recently as 1998. See State v. Vann, 976 S.W .2d 93, 100-01 (Tenn. 1998)
(“Reviewing the evidence in this record, we agree with the Court of Criminal Appeals that the trial court did not err in
failing to give a jury instruction on second degree murder and facilitation of a felony. The evidence in this record
establishes that the victim had been killed during the perpetration of a rape, or that the victim had died from an accidental
choking on popcorn, or that the victim had committed suicide. The record in this case is devoid of evidence to support
a jury charge on the offenses of second degree murder and facilitation of a felony. State v. Boyd, 797 S.W .2d 589, 593


                                                            -3-
description of a trial court’s refusal to instruct as both “not error” and as “no prejudicial error.”
However, appellate challenges to a trial court’s refusal to instruct are destined for failure under
either of these descriptions; therefore, attorneys winnowing out issues for appeal following King
likely did not spend a great deal of time parsing this language.

        Assuming for a moment, for the sake of argument, that the majority is correct in its
assertion that the law was unclear at the time of Carpenter’s appeal, I am puzzled by the
majority’s statement that “[t]he confusion at the time of Carpenter’s appeal regarding when
lesser-included offense instructions were required weighs heavily in favor of concluding that
appellate counsel’s decision not to pursue the issue was reasonable.” (Emphasis added.) The
opposite, it seems to me, would be true. Indeed, this Court stated as much in Miller v. State 54
S.W.3d 743, 747 n.6 (Tenn. 2001) (Drowota, C.J., author):

                  Amicus Curiae, Tennessee Association of Criminal Defense
                  Lawyers, argues that waiver should not apply because the law
                  concerning deliberation was in a state of great disarray at the time
                  of Miller's trial, and as a result, diligent counsel could not have
                  recognized or asserted the issue. With all due respect, we must
                  disagree. Amicus Curiae's argument is based on two faulty
                  propositions. First, there is no indication in Brown that the law
                  actually was in a state of great disarray. The strongest words used
                  in the Brown decision were "blurred" and "muddled".
                  Furthermore, a diligent attorney is more, not less, likely to raise an
                  issue relating to an area of the law that is in a state of great
                  disarray. Indeed, it seems more reasonable to conclude that diligent
                  counsel is less likely to raise an issue when he or she performs
                  research and discovers that the law in an area is well-settled and
                  uniformly applied. Amicus Curiae's arguments that waiver should
                  not be applied are unpersuasive.

(Emphasis added.) Indeed, this statement in Miller is reflected in Tennessee Rule of Appellate
Procedure 11, which lists among the “character of reasons” this Court considers when
determining whether to grant an application for permission to appeal “the need to secure
uniformity of decision.” Thus, while I do not agree that the law was unclear at the time of
Carpenter’s appeal, if confusion existed, as the majority asserts, such confusion would have
weighed heavily against, not in favor of, finding that appellate counsel’s decision not to pursue
the issue was reasonable.


                                                    Conclusion


(Tenn.1990); State v. King, 718 S.W .2d 241, 245 (Tenn.1986). Therefore, failure to instruct the jury on these offenses
was not error.”)


                                                         -4-
        As previously stated, in my view, at the time of Carpenter’s appeal the law was clear and
as stated in King. Given the proof in this record and the governing law, counsel’s decision not to
challenge on appeal the trial court’s failure to instruct on lesser-included offenses was reasonable
and not deficient. Thus, I concur in the majority’s conclusion that Carpenter has failed to
establish his claim of ineffective assistance of appellate counsel but disagree with the majority’s
analysis for the reasons herein explained.




                                      __________________________________________
                                      FRANK F. DROWOTA, III, CHIEF JUSTICE




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