            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                        SEPTEMBER SESSION, 1999
                                                    FILED
                                                    October 21, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
JOHNNY MOFFITT,              *
                             *      No. 02C01-9904-CC-00142
      Appellant,             *
                             *      HENDERSON COUNTY
vs.                          *
                             *      Hon. Julian P. Guinn, Judge
STATE OF TENNESSEE,          *
                             *      (Post-Conviction)
      Appellee.              *



For the Appellant:                  For the Appellee:

Lloyd R. Tatum                      Paul G. Summers
Tatum & Weinman                     Attorney General and Reporter
124 E. Main Street
P. O. Box 293                       J. Ross Dyer
Henderson, TN 38340                 Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493


                                    James G. (Jerry) Woodall
                                    District Attorney General

                                    Al Earls
                                    Asst. District Attorney General
                                    Lowell Thomas State Office Building
                                    Jackson, TN 38302-2825




OPINION FILED:

REVERSED AND REMANDED



David G. Hayes, Judge
                                                  OPINION



         This appeal presents the post-conviction claim of ineffective assistance of

counsel. In 1989, a Henderson County jury found the appellant, Johnny Moffitt,

guilty of first degree murder and shooting into a dwelling.1 His convictions and

sentences were affirmed by this court on direct appeal. 2 In 1993, the appellant filed

the instant post-conviction petition alleging that “the failure of the trial court to

instruct on the defense of alibi constituted a denial of federal and state due process

and was the result of ineffective assistance of counsel.” The post-conviction court

denied relief.3 On appeal, a panel of this court found trial counsel’s performance

deficient and remanded to the post-conviction court for a determination of

prejudice.4 On remand, the post-conviction court found no prejudice. This appeal

presents the limited issue of whether the appellant was prejudiced by trial counsel’s

deficient performance.



         After review, we find prejudice. The appellant’s convictions and sentences

are reversed and vacated and this case is remanded to the trial court for a new trial.




                                          Factual Background


         1
         The appellant was senten ced to life plus five years for first degree murd er and six years
for shooting into an occupied dwelling.

         2
        See State v. Jo hnny Mo ffitt, No. 7 (T enn. Cr im. Ap p. at Jack son, De c. 5, 1990 ), perm . to
appeal denied, (Tenn. Mar. 4, 1991).

         3
           Specifically, the post-conviction court dismissed the petition finding that the grounds
ass erted by the appe llant h ad be en w aived beca use he fa iled to includ e the grou nds in a pr ior su it
for a writ of habeas corpus in the United States District Court for the Western District of
Tennessee, which was filed on April 11, 1991. Additionally, the post-conviction court determined
that, if the petition was considered on its m erits, the appellant would not be entitled to relief.

         4
          The p revious p anel of this c ourt foun d that “the re cord es tablishes that the [ap pellant]
was denied his constitutional right to the effective assistance of counsel by counsel’s statement
[that] an alibi defense had not been fairly raised by the evidence.” See Johnn y Moffitt v. State ,
No. 02C 01-960 9-CC -00304 (Tenn . Crim. A pp. at Jac kson , Sept. 23, 1 997), perm. to appeal
denied, (Tenn. Sept. 14, 1998).

                                                      2
        The evidence presented by the State during the appellant’s trial was entirely

circumstantial. See Johnny Moffitt v. State, No. 02C01-9609-CC-00304. During

the State’s case-in-chief, the proof linking the appellant to the death of his ex-wife’s

brother consisted of (1) the appellant’s previous threats to kill the victim; (2) a history

of discord between the appellant and his former wife and her family; (3) two empty

shell casings found on the appellant’s property were determined by experts to have

been fired from the same weapon as shell casings found at the crime scene; (4) the

testimony of the victim’s neighbor, Ruth Rhodes, that she had observed a maroon

vehicle at the victim’s residence on the date of the murder and evidence that the

appellant owned a maroon vehicle; and (5) the victim was killed as a result of

gunshot wounds fired from a 9mm weapon and the appellant owned a 9mm

weapon. See Johnny Moffitt v. State, No. 02C01-9609-CC-00304; State v. Johnny

Moffitt, No. 7 (Tenn. Crim. App. at Jackson, Dec. 5, 1990), perm. to appeal denied,

(Tenn. Mar. 4, 1991). Notwithstanding this proof, the State also presented

testimony which revealed (1) Ruth Rhodes testified that she had known the

appellant his entire life and that the man driving the maroon car was not the

appellant; and (2) expert testimony revealed that the appellant’s 9mm weapon was

not the weapon that fired the twelve shell casings found at the crime scene. More

importantly, as noted by this court in its initial post-conviction review relative to the

issue of alibi:

        [a] state’s witness, Richard Baxter gave evidence which would support
        a defense of alibi.[5] Baxter testified that he was with the [appellant]
        from 6:45 a.m. until ‘around lunchtime’ on the date of the murder. He
        claimed he went to the [appellant’s] residence where he and the
        [appellant] ate breakfast, talked, and drank alcoholic beverages before
        parting company at approximately 1:00 p.m. Baxter subsequently had
        a confrontation with John Threadgill, who was operating a backhoe.
        The backhoe was blocking the roadway. Threadgill and Baxter had a
        heated argument regarding the location of the backhoe. This
        argument led to a fight. Threadgill estimated the confrontation and
        subsequent fight occurred between 1:00 pm and 2:00 p.m.

        The medical examiner testified as a prosecution witness. He opined

        5
          Prior to trial, defense counsel responded to the State’s request to be advised of the
appellan t’s intention to u se the de fense o f alibi. Specifica lly, the appellant’s n otice, purs uant to
Tenn. R. Crim. P. 12.1, provided that the defense would call Richard Baxter in establishing an alibi
defense.

                                                    3
         the victim died between 11:00 a.m. and 1:00 p.m. He related the
         death could not have occurred after 1:00 p.m.

Johnny Moffitt v. State, No. 02C01-9609-CC-00304 (emphasis added). The proof

also revealed that the wounds resulting in death were inflicted up to thirty minutes

prior to the victim’s death. Additionally, Mr. Rhodes testified that he heard gunshots

between 11:30 and 12:30 on the date of the homicide. The proof established that

the driving time from the appellant’s residence to the crime scene (the victim’s

residence) is approximately thirteen to fourteen minutes.



         At the conclusion of closing arguments,

         [t]he trial court was prepared to instruct the jury on the defense of alibi.
         The State of Tennessee objected to this instruction being included in
         the charge. The assistant district attorney general argued the defense
         of alibi had [not been presented by the appellant]. Defense counsel
         agreed the alibi defense had not [been presented.] The trial court
         agreed with counsel. The court did not instruct the jury on the defense
         of alibi.

Johnny Moffitt v. State, No. 02C01-9609-CC-00304. Specifically, the trial court

instructed the jury

         Ladies and gentlemen, I made some mention of alibi. That is not
         being claimed as a defense in this case and you are not to consider an
         alibi.[6]

         Upon remand, the post-conviction court found that the appellant was not

prejudiced by counsel’s deficient performance in acquiescing in the trial court’s

decision not to instruct the jury on the defense of alibi. 7 In its findings, the court

observed that only one out of a total of twenty-three witnesses testified in any

manner that could be construed as establishing the defendant’s presence at any

particular place at any particular time. Indeed, the court stated:

         [t]here was insignificant evidence, if indeed any evidence, of the


         6
          Altho ugh we ne ed no t reac h this ma tter, w e ack now ledge conc ern o ver th e trial c ourt’s
comments, “you are not to consider an alibi.” The court’s comments come perilously close, if not
crossin g the line, to un constitution al com men ts upon the eviden ce. See Tenn. Const. art VI, § 9.
Additiona lly, there is conc ern that the trial court’s co mm ents to the jury and its de termin ation not to
provide a n instructio n on alibi unc onstitutiona lly abridged the appellant’s right to pres ent a
defens e. Cf. State v. Brian J. Hunter, No. 02C01-9708-CR-00309 (Tenn. Crim. App. at Jackson,
Aug. 14, 1998) (Hayes, J., dissenting).

         7
             The proceedings involved different judges at the trial and post-conviction levels.

                                                     4
        defendant’s whereabouts at times and places vis-a-vis distances that
        would have allowed one to establish either his presence or absence at
        the scene. A charge on alibi would have served no purpose other than
        to point out the absence of such evidence and to obfuscate the
        defense based upon the weakness of the State’s circumstantial
        evidence.

On appeal, we are bound by the post-conviction court's findings of facts unless we

conclude that the evidence in the record preponderates against those findings.

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn.1990). The findings of the post-conviction court are directly opposed to this

court’s findings that the proof sufficiently raised the issue of alibi. Moreover, the

lower court’s recitation of the proof is not supported by the record. Thus, we are not

bound by these findings.




                               Ineffective Assistance of Counsel

        The Sixth Amendment right to counsel requires not only that a person

accused of a crime have the assistance of counsel for his or her defense, but also

that such assistance be effective. Effective assistance is not flawless, perfect, or

error free assistance, nor assistance which in hindsight is deemed ineffective, but is,

rather, competent representation, that is, representation that is within the range of

competence demanded of attorneys in criminal cases generally. In essence,

effective assistance of counsel is not equivalent to a successful defense of the

accused.



        This court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). The appellant has the burden to

prove, by a preponderance of the evidence,8 that (1) the attorney's performance was

        8
          In post-conviction proceedings filed prior to the enactment of the 1995 Post-Conviction
Proc edu re Ac t, the a ppe llant m ust p rove the a llegat ions cont ained in his p etition by a
prepon deranc e of the ev idence. State v. Kerley, 820 S.W .2d 753, 7 55 (Te nn. Crim . App.), p er m .
to appeal denied, (Tenn .1991); Oliphan t v. State, 806 S.W .2d 215, 2 18 (Te nn. Crim . App.), p er m .
to appeal denied, (Tenn .1991).

                                                   5
deficient, and (2) the deficient performance resulted in prejudice to the defendant so

as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct.

at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn.1996); Overton v. State, 874

S.W.2d 6, 11 (Tenn.1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn.1990).



       Again, a previous panel of this court has already determined that counsel’s

acquiescence in the trial court’s decision to withhold from the jury the instruction on

the defense of alibi and counsel’s subsequent failure to raise this issue on direct

appeal amounted to deficient performance. In doing so, this court concluded that

the evidence of State’s witness Richard Baxter “would support a defense of alibi.”

See Johnny Moffitt v. State, No. 02C01-9609-CC-00304. The first prong of

Strickland has been satisfied. Thus, the sole issue before this court is whether the

post-conviction court erred by finding that the appellant was not prejudiced by

counsel’s deficient performance.



                         The Prejudice Prong of Strickland

       The demonstration of prejudice to the defense necessary for success on a

claim of ineffective assistance of counsel requires a showing that the deficient

performance of counsel deprived the defendant of a fair trial, a trial whose result is

reliable. See Tidwell v. State, 922 S.W.2d 497, 502 (Tenn. 1996) (citation omitted).

The essence of the claim is that counsel’s unprofessional error rendered the result

of the trial suspect or unreliable. See Porterfield v. State, 897 S.W.2d 672, 677

(Tenn. 1995). Unreliability or unfairness does not result if the ineffectiveness of

counsel does not deprive the defendant of any substantive or procedural right to

which the law entitles him. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838,

844 (1993). In other words, absent some effect of counsel’s deficient performance

upon the reliability of the trial process, the Sixth Amendment right to assistance of

counsel is generally not violated.




                                         6
       We note that to focus on the mere outcome determination, without attention

to whether the result of the proceeding was fundamentally unfair or reliable, is

misguided. See Lockhart v. Fretwell, 506 U.S. at 369, 113 S.Ct. at 842. Indeed,

although the “premise of our adversary system of criminal justice . . . promote[s] the

ultimate objective that the guilty be convicted and the innocent go free,” the right to

effective assistance of counsel is not conditioned upon actual innocence.

Kimmelman v. Morris, 477 U.S. 365, 379-380, 106 S.Ct. 2574, 2585 (1986) (internal

citations omitted). As stated by the Supreme Court in Strickland v. Washington,

“The purpose of the Sixth Amendment guarantee of counsel is to ensure that a

defendant has the assistance necessary to justify reliance on the outcome of the

proceeding.” Strickland v. Washington, 466 U.S. at 691-692, 104 S.Ct. 2052, 2066-

2067. Indeed, in order to succeed in showing that counsel’s deficient performance

resulted in prejudice, the defendant must show that the deficient performance

actually had an adverse effect on the defense.



       In making a determination of prejudice, the reviewing court presumes, that

the jury acted according to the law. See generally Lockhart v. Fretwell, 506 U.S. at

370, 113 S.Ct. at 843. Additionally, an assessment of the likelihood of a result more

favorable to the defendant must exclude the possibility of arbitrariness, whimsy,

caprice, nullification and the like. Strickland v. Washington, 466 U.S. at 695, 104

S.Ct. at 2068. The assessment of prejudice should proceed on the presumption

that the decision maker is reasonably, conscientiously, and impartially applying the

standards that govern the decision. Id. at 695, 104 S.Ct. at 2068. It should not

depend on the idiosyncracies of the particular decision maker, such as unusual

propensities toward harshness or leniency. Id. at 695, 104 S.Ct. at 2068. We must

also consider the totality of the evidence before the judge or the jury as some of the

factual findings will have been unaffected by the errors and factual findings that

were affected will have been affected in different ways. Id. at 695, 104 S.Ct. at

2069. Some errors will have had a pervasive effect on the inferences to be drawn


                                          7
from the evidence, altering the entire evidentiary picture and some will have had an

isolated trivial effect. Id. at 695-696, 104 S.Ct. at 2069. Moreover, a verdict or

conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support. Id. at 696, 104 S.Ct. at 2069.

Taking the unaffected findings as a given, and taking due account of the effect of

the errors on the remaining findings, a court making the prejudice inquiry must ask if

the defendant has met the burden of showing that the decision reached would

reasonably likely have been different absent the errors. Id. at 696, 104 S.Ct. at

2069.



        Thus, we turn to the determinative question of whether there is a reasonable

probability that, absent trial counsel’s errors relating to the proof of alibi, the fact

finder would have had a reasonable doubt respecting the appellant’s guilt. Where

the proof fairly raises the issue of alibi, and the proof is supported by credible

evidence, the trial court is required to give the instruction of alibi whether requested

or not. Christian v. State, 555 S.W.2d 863, 864 (Tenn. 1977); Manning v. State,

500 S.W.2d 913 (Tenn. 1973). Indeed, the failure to so instruct the jury is reversible

error. Poe v. State, 370 S.W.2d 488, 490- 491 (Tenn. 1963). A previous panel of

this court has already determined that the proof in the record fairly raised the issue

of alibi. See Johnny Moffitt v. State, No. 02C01-9609-CC-00304. We agree that the

issue was fairly raised by the proof and it was for the jury to evaluate the credibility

of the witnesses and decide this factual issue. In order to properly perform its duty

of applying the law to the facts, the jury must be instructed on the law applicable to

all factual issues raised by the proof, including the defense of alibi. Thus, the

appellant was entitled to an instruction on alibi to aid the jury in properly evaluating

the proof. Moreover, our supreme court has held that, when an alibi is supported

by the proof, the instruction is fundamental to the defense and essential to a fair

trial. Poe, 370 S.W.2d at 491.




                                            8
       Although the defense did not introduce any proof of alibi and trial counsel did

not specifically argue an “alibi defense,” the record reflects that counsel’s closing

argument focused upon the State’s failure to meet its burden of proof and the

discrepancies in the time frame of the crimes. Specifically, defense counsel

consistently reminded the jury that “the puzzle won’t fit,” “the time factor here won’t

fit.” In doing so, counsel made references to the testimony of Ruth Rhodes, Dr.

Ramer, and, most importantly, Richard Baxter. It cannot be ignored that the

appellant’s defense relied primarily upon the “time factor,” or, in other words, an alibi

defense. Again, by failing to pursue an instruction on this matter, trial counsel

essentially nullified his closing argument.



       Considering the proof before the jury in the context of the absent alibi

instruction, we can reach no other conclusion than finding that the appellant was

prejudiced by counsel’s deficient performance. In the present case, the jury was

precluded from considering the alibi evidence. We cannot conclude that the result

of the appellant’s trial was reliable or that had an alibi instruction been provided the

outcome would not have been different. Accordingly, the appellant’s conviction




must be reversed and a new trial ordered. This case is remanded to the trial court

for proceedings consistent with this opinion.




                                          9
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




________________________________________
JOE G. RILEY, Judge



________________________________________
THOMAS T. W OODALL, Judge




                               10
