        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                September 1, 2009 Session

                  DEREK T. PAYNE v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                            No. P-28444    Mark Ward, Judge



                  No. W2008-02784-CCA-R3-PC - Filed January 15, 2010


The Petitioner, Derek T. Payne, appeals as of right the Shelby County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner was convicted by a jury of
second degree murder and attempted especially aggravated robbery, and he received an
effective sentence of thirty-seven years. On appeal, he argues that the denial of his petition
was error because he did not receive the effective assistance of counsel at trial or on appeal.
Specifically, he contends that counsel failed to raise or challenge certain jury instruction
issues, failed to fulfill promises made during the opening statement, failed to introduce
evidence of the victim’s past conduct to show that the victim was the first aggressor, and
failed to object to the State’s improper closing argument. Additionally, he contends that his
sentence was unconstitutionally imposed based on Blakely v. Washington, 542 U.S. 296
(2004). Following our review of the record and the parties’ briefs, we conclude that the
Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction
court is affirmed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AVID H. W ELLES, J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Derek T. Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Summer Morgan, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                  Factual Background

        On July 1, 1997, the Shelby County Grand Jury returned two indictments against the
Petitioner. In the first indictment, he was charged with one count of attempted especially
aggravated robbery; in the other two-count indictment, he was charged with first degree
premeditated murder and first degree felony murder for the November 24, 1996 killing and
attempted robbery of the twenty-three-year-old victim, Brian Pritchard. See State v. Derek
T. Payne, W2001-00532-CCA-R3-CD, 2002 WL 31624813, at *1 (Tenn. Crim. App.,
Jackson, Nov. 20, 2002), perm. to appeal denied, (Tenn. May 19, 2003). Following a jury
trial, the Petitioner was convicted of second degree murder and attempted especially
aggravated robbery. Id. He was sentenced by the trial court to the maximum terms of twelve
years as a Range I, standard offender for the attempted especially aggravated robbery
conviction and twenty-five years as a violent offender for the second degree murder
conviction, with the sentences to be served consecutively, for an effective sentence of
thirty-seven years. Id.

      This Court summarized the facts established at trial as follows:

                                         State’s Proof
              At the [Petitioner’s] trial, Dr. Wendy Gunther, the forensic pathologist
      who performed the autopsy of the victim’s body, testified that the victim died
      from a gunshot wound to the head in which the bullet entered in front of his
      left ear, traveled through his head, and lodged in the skull bone behind and
      below his right ear. In addition to the gunshot wound to the head, which
      would have been immediately fatal, the victim also suffered what Dr. Gunther
      characterized as “flesh wound[s]” to both legs, caused by bullets that traveled
      through the “deep meat” of his thighs but did not hit any blood vessels, bones,
      or major nerves. She testified that she found three gunshot wounds in the
      victim’s right leg, consisting of one entrance wound and two exit wounds in
      the thigh that were caused by either a single bullet that broke into two pieces
      or two bullets that entered at the same place, and two gunshot wounds in his
      left leg, consisting of an entrance wound and an exit wound in the thigh. The
      gunshot wounds in both legs occurred, roughly, from the back to the front of
      the victim’s thighs. The wounds to the victim’s legs would not have prevented
      him from standing or running. Dr. Gunther could not determine at what
      distance the fatal gunshot was fired, what position the victim was in when
      shot, or whether the gunshot wounds were inflicted by one or two guns. She



                                            -2-
said that the victim’s blood-alcohol level was 0.11 grams per deciliter, and that
his toxicology report revealed no drugs of any kind in his system.

       Thomas Hughlett testified that the [Petitioner] was formerly his uncle’s
stepson and was “like a cousin.” On November 24, 1996, he was barbequing
at his mother’s house in Memphis when the [Petitioner] came by and asked
him “to take him on Aubra Street.” When he refused, the [Petitioner] pulled
two guns out of his clothing and said, “I’m going to kill me a motherfucker
and I ain’t going back to jail. I’m going to hell.” Hughlett agreed on
cross-examination that the [Petitioner] was not “acting right,” testifying that
his eyes looked “glossy” and he appeared to be under the influence of some
kind of drug. He was aware that the [Petitioner] had been snorting powder
cocaine for a number of months, but did not know if he had used any that day.
He conceded, however, that he had told police officers that the [Petitioner]
became “crazy” and “a whole different person” when he was on cocaine.

       Eric Rogers, a friend of the victim, testified that the victim was with
him on the evening of November 24, 1996, as he responded to a page he had
received from someone at a residence on Aubra Street. He said that when he
pulled his car into the driveway, he saw the [Petitioner’s] face at the upstairs
window of an apartment belonging to a woman named Nicole. Leaving the
victim in his car, he got out and went up to the apartment to find out who had
paged him. On his way up, he saw the [Petitioner] sitting on the hallway stairs
with Keith Brown. When told by the apartment’s occupants that no one there
had paged him, he headed back out to his car. He had paused to talk
downstairs with a woman named Christine when Brown asked if he had a
light. Rogers said that he gave Brown a book of matches, and then started
toward his car. He did not see the victim.

       Rogers testified that as he was walking to the car, Brown pulled a gun
on him and ordered him to “drop it off.” He said that he threw his arm up and
ran around the car. He slipped and fell, and Brown pulled him up by his shirt
and demanded again that he “drop it off.” After Rogers had given Brown
$142, Brown asked where his car keys were and was told they were in the car.
At that point, he heard Brown repeatedly say, “Derek, don’t shoot. Derek,
don’t shoot,” and looked around to see the victim and the [Petitioner] on the
front porch of the “complex” next door. He then heard two or three gunshots.
In response to the gunshots, he ran around Nicole’s building. He next saw
Brown get into his car and pull out into the street, the [Petitioner] run off the
front porch of the duplex and jump into the car, and both men drive off. He

                                       -3-
later identified Brown and the [Petitioner] from photographic spreadsheets
shown to him by the police.

        Rogers testified on cross-examination that he had known the
[Petitioner] for about fifteen years, but they were not friends. He said that the
[Petitioner] had known his pager number, although acknowledging he had told
police two days after the shooting that the [Petitioner] did not. In addition to
Nicole, men he knew as “Head” and “Twin” were in Nicole’s apartment when
he arrived. He did not see the [Petitioner] with a gun when he went up to the
apartment, and saw Brown, but not the [Petitioner], when he came back
outside the building. He testified that he saw the [Petitioner] and the victim
on the porch after Brown yelled to the [Petitioner] not to shoot, and that he
thought he saw the [Petitioner] standing over the victim. He said that the two
or three gunshots he heard from the porch, the last of which may have occurred
after a slight pause, “had to come from [the Petitioner].” However, he
acknowledged that he did not see the victim get shot, did not see the
[Petitioner] with a gun, and did not see what transpired between the victim and
the [Petitioner] before the shooting.

        Rogers admitted that it was dark at the time of the shooting and that he
had testified during the preliminary hearing that, although he had seen
someone standing on the porch, he had not been able to see who it was. He
acknowledged that he went to his mother’s house after the shooting and that
later he, “Premo,” and “Tam” had gone armed with pistols to the West
Memphis trailer home of the [Petitioner’s] girlfriend, where they had kicked
in the door and demanded to know the [Petitioner’s] whereabouts. He also
acknowledged that both he and the victim had both been involved with drugs
at the time of the shooting.

        Kenneth Ezell, who was 14 when the shooting occurred, testified that
he was on the front porch of a duplex at 1185 Aubra Street at about 6:30 or
7:00 p.m. on November 24, 1996, when he saw the victim and Rogers pull up
in a car. Ezell said that the next-door neighbor, Roger Lee, was on the porch
with him at the time, as well as “Twin,” whose real name, he believed, was
Kevin Phillips. Rogers went next door, and the victim came up onto the porch
of 1185 Aubra and began talking with Lee. Ezell said that the victim stood
talking on the porch for about thirty minutes until they heard “a commotion”
next door from the house he had seen Rogers enter, which caused everyone to
turn around and look. When they did so, “there was a guy with two (2) guns
saying drop it off.” According to Ezell, the man was pointing his guns at the

                                       -4-
entire group on the duplex’s porch, and was not directing his words to any
particular person. He said that when he saw the guns and heard the command
to “drop it off,” he ran into the house. Two or three seconds later, he heard
three or four gunshots. After approximately twenty minutes, he went back
outside and saw the victim lying on the porch. Ezell identified the [Petitioner]
as the man he had seen with the two guns. He testified that he did not see the
victim, “Twin,” or Lee with a gun that evening, and that he had not had a gun
either.

        Ezell testified on cross-examination that he had seen the [Petitioner]
around the neighborhood prior to November 24, 1996, but the first time he saw
him on the day of the shooting was at about 7:30 p.m. He did not remember
telling the police after the shooting that he was not on the porch when the
[Petitioner] arrived, or telling an investigator in an August 26, 1999 telephone
conversation that he did not come through the area until after everything had
already happened. He also did not remember having said that he and Lee were
the only ones on the porch that evening. He testified that he was on the porch
immediately before the shooting, and that Lee, “Twin,” and “Mug” were on
the porch with him. The “Twin” on the porch with him was not Kevin
Phillips, as he had suggested during his direct examination testimony, but
instead was “another twin out of Hilltop, right down the street.” However,
Phillips had been “out there for a minute” before walking to a store. He did
not recall any drug activity that night, denied any knowledge about any drug
sales that might have been taking place on the street, and was not aware of
what the victim and Rogers did for a living. He acknowledged that he heard
someone yell, “They’re fighting” just before he went into the house. He
testified on redirect, however, that the [Petitioner] and the victim had not been
fighting.

        An eyewitness to the shooting, Kevin Phillips (“Twin”), testified that
he had been in the area all day. The victim was talking to Robert Lee when
Phillips left to go to the store. When he returned from the store, he saw Keith
Brown chasing Eric Rogers around a car. At the same time, the [Petitioner]
ran up, grabbed the victim, and slung him facedown onto his stomach with his
hands out to his sides. The [Petitioner] told the victim to give him his money.
The victim replied that he did not have any, and was “pulling his pockets out
trying to show him he didn’t have [any] money” when the [Petitioner] “all of
a sudden” shot him. The victim said, “I ain’t got no money, don’t shoot me.”
The [Petitioner] shot him again. The victim said, “Please don’t kill me.” The



                                       -5-
[Petitioner] then shot him again. During the shooting, Brown asked the
[Petitioner] what he was doing and told him not to shoot or kill the victim.

        Two days after the shooting, he identified the [Petitioner] from a
photographic lineup as the victim’s shooter. Phillips also made a positive
courtroom identification of the [Petitioner] as the shooter. He testified that the
[Petitioner] had two guns at the time of the shooting, and that he had also seen
the weapons earlier that day when the [Petitioner] was “[f]lashing them
around.” As far as he knew, the victim did not have a weapon. On
cross-examination, Phillips acknowledged that the victim and Rogers were
both friends of his, and conceded that the [Petitioner] “probably” was “strung
on crack cocaine” that night. He insisted, however, that he knew nothing
about any drug activity on the street.

       Officer Cham Payne of the Memphis Police Department Crime
Response Unit testified that he and his partner received a call about the
shooting at 6:45 p.m. When they arrived at the scene, 1185 and 1187 Aubra,
which was a duplex, they found the victim lying on his back on the front porch
in front of the door to 1185. Sergeant Thomas Helldorfer, a homicide
investigator with the Memphis Police Department, testified that, as part of his
investigation of the crime, he searched for the [Petitioner] at various locations,
including the Aubra neighborhood and his grandmother’s house on New York,
but was unable to find him.

                                 Defense Proof
        The first defense witness was Steven Paul Rossby, Ph.D., a molecular
neurobiologist on the faculty of Vanderbilt University School of Medicine,
who was allowed to offer expert testimony on serotonin and its relationship to
human behavior. Dr. Rossby testified that serotonin is one of a number of
naturally occurring chemicals in the brain known as neurotransmitters, which
fall into one of two categories: excitatory neurotransmitters, or chemicals that
cause the nerve cells to fire impulses, and inhibitory neurotransmitters, or
chemicals that inhibit or prevent the nerve cells from firing. Serotonin, which
acts to inhibit the firing of nerve impulses, has been the subject of extensive
research for over twenty years because it appears not only to be an inhibitory
neurotransmitter, but also to control or orchestrate other inhibitory systems in
the brain. Dr. Rossby explained that the various inhibitory systems in the
human brain have evolved




                                       -6-
       so that we don’t act on every impulse, so that we may get angry
       but we don’t go beyond it, we control our anger, or we—we
       don’t respond to everything that’s happening impulsively, that
       we—we have a chance—we have some control within the
       limbic system. This has evolved over—I don’t know how many
       millions of years these systems have evolved to protect us from
       just acting purely impulsively.

       Dr. Rossby testified that the research in the field has consistently shown
a link between low serotonin levels and “explosive impulsive violence.” In
addition, scientists have discovered that Type II alcoholism and intermittent
explosive disorder are both linked to low levels of serotonin. He described a
Type II alcoholic as “the mean drunk,” “[t]he person who has a couple of
drinks and, then, becomes suddenly violent and angry,” and testified that
intermittent explosive disorder is characterized by a “sudden loss of control
and an explosive violent behavior that seems to have been triggered by little
or nothing at all.” He explained the relationship between low serotonin and
violent behavior as follows:

        Low serotonin, in itself, does not cause violence. Low serotonin only
indicates your capacity for dealing with your anger, . . . your biological
capacity to control yourself. But it doesn’t actually—Serotonin does not
produce violence. I mean, many people have low serotonin and they are
depressed all of the time. And many people have low serotonin and they can’t
stop gambling. But it depends on a person’s early childhood experiences and
a lot of other factors. But with low serotonin, once the impulsive behavior has
been—has been released, the low serotonin indicates your—your ability to take
it back or control it. And many people who have low serotonin are virtually
incapable of controlling their impulsive behavior.

        Although he agreed that cocaine was a stimulant, he testified that
scientific studies have not shown a link between serotonin levels and cocaine
use. Therefore, he could not say whether chronic cocaine use by an individual
with low serotonin would exacerbate the lack of inhibition.

       Dr. Rossby testified that he determined the [Petitioner’s] serotonin level
was low by performing a statistical comparison of his average serotonin level
to the average levels of thirty-four controls—men who were diagnosed by
Vanderbilt psychiatrists to be “normal”; i .e., with no mental illnesses and no
family history of mental illnesses. The [Petitioner’s] average serotonin level

                                       -7-
was 78.5 nanomoles. The thirty-four controls had average serotonin levels
ranging from a low of 87.5 nanomoles to a high of 250 nanomoles, with the
average or mean at 142.1 nanomoles. Using statistical tests and the data from
the controls, he concluded that 89% of the males in the total population have
higher serotonin levels than the [Petitioner]. The [Petitioner’s] serotonin level,
in fact, was “among the lowest” he had seen. Since the studies indicate that
a man’s serotonin level will remain stable throughout his life until he reaches
the age of about 50 or 60, when serotonin levels tend to rise, he could assume
that the [Petitioner’s] serotonin level at the time he conducted his tests, in
1999, was reflective of his serotonin level at the time of the shooting, in 1996.
Dr. Rossby testified that his opinion, “given the level of [the Petitioner’s]
serotonin and given the scientific literature and all of the studies,” was that the
[Petitioner’s] “capacity to control [an] impulse once it has occurred is virtually
non-existent.”

       On cross-examination, Dr. Rossby acknowledged that in order for
serotonin to be related to a crime, the crime would have to be impulsive. He
further acknowledged that the Finnish researchers who conducted the
watershed study on the subject, a study to which he had referred numerous
times during his testimony, had not included crimes in which the perpetrator
had had a potential monetary motive, or had known his victim, in the group of
crimes they considered impulsive. He said, however, that those criteria were
merely used by the original researchers as “a convenience . . . to try to roughly
separate the prisoners into two (2) groups so they could study the differences”;
under the current scientific knowledge, a crime could be considered impulsive
even if committed for potential monetary gain, or against someone known to
the perpetrator.

        The twenty-five-year-old [Petitioner] also testified in his own defense.
He said that at the time of the incident he was making his living by selling
drugs and gambling and had been engaging in those activities since he was 15.
He often went to the Aubra Street neighborhood to sell “dope,” and was there
selling drugs at the time the shooting occurred. He was armed with a .22
pistol, which he always carried with him, due to the nature of his business and
the neighborhood which he frequented. The [Petitioner] testified that it is
common for people in the drug trade to be armed. He said that he knew both
Rogers and the victim from the neighborhood, and knew that they were also
involved in the drug trade. He testified that Rogers was the supplier of most,
if not all, of the drugs sold in the neighborhood and that the victim was one of



                                        -8-
his sellers. Although Rogers attempted to control all the drug activity in the
area, the [Petitioner] did not work for him.

        The [Petitioner] testified that he was smoking a marijuana cigarette and
urinating against the side of the house when the victim and Rogers pulled up.
He saw the victim get out of the car and then heard him arrange to sell a
“dude” $100 worth of cocaine. When the victim ran upstairs to get the drugs,
he stepped forward and “gave Dude a better deal.” The victim came back
down, learned from the drug buyer that the [Petitioner] had already sold him
the drugs, became angry, and accused the [Petitioner] of stealing his sale. The
[Petitioner] said that he answered by telling the victim, in effect, that he was
just out there to make a living like everybody else. The victim responded by
telling him that he should not be selling drugs in his area. The [Petitioner] said
that he took offense and told the victim, “You have me f’d up.” Next, the
victim acted as if he were going to walk away, but then turned and reached for
his gun.

       The [Petitioner] testified that when he saw the victim reach for his gun,
he grabbed the victim’s hand and the two began “tussling.” During the
struggle, he picked the victim up and slung him down on the porch, causing
the victim’s gun to slide out of his hand. After he threw the victim down, he
brought his gun out and shot him twice in rapid succession. When the victim
began crawling toward his gun, he ran forward, grabbed the victim’s gun, and
shot him again. According to the [Petitioner], the entire episode occurred
within the space of seconds or, in his words, “all at once.” He could not
clearly remember everything that had occurred, but knew that he ran to the
corner after the victim fell. When asked if he had intended to rob the victim,
the [Petitioner] answered, “No, sir. I had too much money in my pocket. I had
over fifteen hundred (1,500).” He said that he threw the victim’s gun, along
with his own, into the river as he drove across the bridge into Arkansas.

        The [Petitioner] further testified that he had been using large amounts
of marijuana, cocaine, and alcohol, and was under the influence of both
cocaine and alcohol at the time the shooting occurred. He said that he
“smoke[d] weed like cigarettes,” “dr[a]nk wine like water . . . all day every
day,” and snorted “[a]bout half an ounce a day” of cocaine. He began drinking
and using drugs at the age of 4, when his uncles started giving him alcohol and
marijuana to amuse themselves by watching him get high. Later, when they
tried to get him to quit, it was too late. He said that he had lived in two
treatment facilities as a child: MMHI, where he lived when he was 9 or 10, and

                                       -9-
       Sequoia Center, where he lived for about two years. At both facilities, he was
       prescribed “a lot of drugs,” whose names he could not remember. He first
       heard the term “intermittent explosive disorder” when he was about 5 or 6 and
       was put into treatment. Although he did not understand what the term meant,
       he remembered that he used to lose his temper almost every day, and that he
       would get so upset that he would “blank out.” When he came to, he could not
       always remember what he had done while he was “blanked out.”

               On cross-examination, the [Petitioner] denied having had two guns
       when he went to Hughlett’s house, or having been with Brown at the Aubra
       Street location. He admitted that he had accepted a ride from Brown after the
       shooting, but said that he had not known anything about Brown’s robbery of
       Rogers at the time. He testified that he had been around the corner using a pay
       phone when Brown pulled up and offered him the ride. He said that he had
       “snapped” when the victim pulled the gun on him, but acknowledged that he
       did not say anything in his statement to the police, when they located him
       several months later, about the victim’s having pulled a gun. He explained this
       omission by testifying that he had told the police only what he “felt that they
       needed to know,” that he had killed the victim but had not robbed him. He
       admitted that his memory of the events surrounding the shooting was not
       perfect, and that some of what he remembered might have occurred in his
       dreams. On redirect, he testified that he had told the same story he was telling
       in court to his defense counsel and their investigators “[m]any, many times.”


Id. at *1-7 (footnotes omitted).

        On direct appeal of these convictions to this Court, the Petitioner argued that (1) the
trial court erred by overruling his motion in limine; (2) the evidence was insufficient to
support his convictions; and (3) the trial court committed sentencing errors. Id. at *1. After
reviewing the record and applicable authorities, this Court affirmed the convictions and the
Petitioner’s sentences. Id. at *1, 18. Our supreme court denied the Petitioner’s request for
permission to appeal on May 19, 2003.

       The Petitioner filed a petition for post-conviction relief on May 12, 2004. Counsel
was appointed for the Petitioner, and an amended petition was filed. The Petitioner asserted
that he did not receive the effective assistance of counsel at trial or on direct appeal. As
specific grounds for relief, the Petitioner made the following allegations: (1) trial counsel
was ineffective for failing to include as an issue in the motion for new trial whether the trial
court erred by not charging reckless homicide as a lesser included offense of premeditated

                                              -10-
murder and felony murder, and appellate counsel was ineffective for failing to raise this issue
on appeal; (2) trial counsel was ineffective for failing to request an instruction on voluntary
manslaughter as a lesser included offense of felony murder and failing to present this issue
in the motion for new trial, and appellate counsel committed error by failing to raise this
issue on appeal; (3) trial counsel was ineffective for failing to fulfill promises made to the
jury during his opening statement; (4) trial counsel was ineffective for failing to challenge
the improper definition of “knowingly” for second degree murder and in failing to raise the
issue in the motion for new trial, and appellate counsel was ineffective for failing to raise this
issue as plain error on appeal; (5) trial counsel was ineffective for failing to present evidence
of the victim’s past conduct to show that the victim was the first aggressor; (6) trial counsel
was ineffective for failing to request an instruction on voluntary intoxication or object to its
absence in the jury charge and, further, for failing to present the issue in the motion for new
trial; and (7) trial counsel was ineffective for failing to object to the State’s improper closing
argument. In a second amended petition, the Petitioner argued that his sentence—its length
enhancement and consecutive nature—was unconstitutional under Blakley v. Washington,
542 U.S. 296 (2004).

        A hearing was held on November 10, 2008, at which counsel (the Petitioner’s lead
counsel at trial was the same lawyer who represented him on direct appeal) and co-counsel
testified (collectively referred to as counsel). After hearing the evidence presented, the
post-conviction court denied relief. This appeal followed.

                                           Analysis
        On appeal, the Petitioner argues that counsel failed to provide the effective assistance
of counsel guaranteed him by the United States and Tennessee constitutions at trial and on
direct appeal.1 To sustain a petition for post-conviction relief, a petitioner must prove his or
her factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon
review, this Court will not reweigh or re-evaluate the evidence below; all questions
concerning the credibility 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 post-conviction judge, not
the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless
the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley,
960 S.W.2d at 578.



        1
           For the purposes of clarity, we have renumbered and reordered the issues as stated by the Petitioner
in his brief.

                                                     -11-
        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. The defendant bears the burden of establishing both of these components by clear
and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The
defendant’s failure to prove either deficiency or prejudice is a sufficient basis upon which
to deny relief on an ineffective assistance of counsel claim. Burns, 6 S.W.3d at 461; Goad
v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).




                                              -12-
       The principles are the same when determining the effectiveness of both trial and
appellate counsel. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). A petitioner
alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel
was objectively deficient in failing to raise a particular issue on appeal, and (2) absent
appellate counsel’s deficient performance, there was a reasonable probability that the
petitioner’s appeal would have been successful before the state’s highest court. See, e.g.,
Smith v. Robbins, 528 U.S. 259, 285 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.
2001); Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994).

        It is counsel’s responsibility to determine the issues to present on appeal. State v.
Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App.1986). This responsibility addresses itself
to the professional judgment and sound discretion of appellate counsel. Porterfield v. State,
897 S.W.2d 672, 678 (Tenn. 1995). There is no constitutional requirement that every
conceivable issue be raised on appeal. Campbell, 904 S.W.2d at 597. The determination of
which issues to raise is a tactical or strategic choice. Id.

I. Reckless Homicide Instruction
       As his first assignment of error, the Petitioner submits that counsel rendered
ineffective assistance when he did not raise the issue of whether reckless homicide should
have been charged as a lesser included offense of both first degree and felony murder in the
motion for new trial or on direct appeal. Reckless homicide is a reckless killing of another
and is a Class D felony. See Tenn. Code Ann. § 39-13-215. “Reckless” refers

       to a person who acts recklessly with respect to circumstances surrounding the
       conduct or the result of the conduct when the person is aware of but
       consciously disregards a substantial and unjustifiable risk that the
       circumstances exist or the result will occur. The risk must be of such a nature
       and degree that its disregard constitutes a gross deviation from the standard of
       care that an ordinary person would exercise under all the circumstances as
       viewed from the accused person’s standpoint.

Tenn. Code Ann. § 39-11-302(c).

       Here, the trial judge instructed the jury on second degree murder and voluntary
manslaughter as lesser included offenses on the premeditated murder count; he only
instructed second degree murder as a lesser included offense on the felony murder count.
Counsel did request a reckless homicide instruction on the premeditated count, but the
request was denied. The trial court ruled that the facts did not support a reckless homicide
charge. On September 18, 2000, the jury returned verdicts of second degree murder on both
counts.

                                             -13-
        Testimony at trial established that the Petitioner had been using cocaine at the time
of the shooting and that, coupled with the proof regarding his low serotonin levels, it was
possible that the jury could have concluded the killing was reckless. Reckless homicide
simply contains a different mental state indicating a lesser kind of culpability than
premeditated murder. Accordingly, the trial court was obliged to instruct the jury as to the
lesser included offense of reckless homicide when the evidence showed a basis for the jury
concluding that the killing was reckless.

        Although the trial court erred in failing to instruct the jury on reckless homicide, the
issue presented by the Petitioner is whether counsel was ineffective in failing to pursue this
issue in the motion for new trial and on appeal. We cannot conclude that the Petitioner has
established prejudice. The Petitioner was obliged to prove by clear and convincing evidence
a reasonable probability that the outcome of the trial proceeding would have been different
had the instruction been given. See Stickland, 466 U.S. at 694. A court reviewing a claim
of ineffective assistance of counsel may not order a new trial unless the court concludes there
is a reasonable probability that the error did affect the verdict. See id.; see also Overton, 874
S.W.2d 6, 11 (Tenn. 1994) (“To establish actual prejudice, the defendant must demonstrate
that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’”), cf. State v. Allen, 69 S.W.3d 181, 189
(Tenn. 2002) (articulating a traditional test for harmless constitutional error in omitting jury
instruction on lesser included offense and indicating that the conviction will be reversed on
direct appeal unless the reviewing court is convinced beyond a reasonable doubt that the
error did not affect the verdict).

        The proof at trial demonstrated that the Petitioner had a motive to shoot the victim
(drug sales), he procured a weapon, and he shot the victim three times, the third shot coming
after a pause. In the face of this evidence, we are unconvinced in this collateral attack
proceeding that the verdict would have been different had counsel persuaded the trial judge
to charge reckless homicide as a lesser included offense of first degree murder. Furthermore,
the Petitioner would not have been able to establish plain error on appeal. The Petitioner
never argued that the shooting was accidental and evidence of provocation existed in the
record. See State v. Jerry W. Jordan, No. M1999-00813-CCA-R3-CD, 2001 WL 1218314,
at * 9 (Tenn. Crim. App., Nashville, Oct. 11, 2001) (“In a case where no evidence of
provocation exists, the logical immediate lesser included offense of second degree murder
is reckless homicide because what distinguishes voluntary manslaughter from an intentional
or knowing killing is not a lesser mental state, but rather, the extenuating circumstance of
adequate provocation.”). The trial court did instruct the jury on voluntary manslaughter as
a lesser included offense of premeditated murder; the jury convicted the Petitioner of second
degree murder and rejected the lesser included offense of voluntary manslaughter. See State
v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998) (failure to instruct on voluntary

                                              -14-
manslaughter as a lesser included offense was harmless error where jury convicted on first
degree murder and declined to convict on second degree murder); see also State v. Nelson
Troglin, No. E2001-00251-CCA-R3-CD, 2002 WL 385800, at *19-20 (Tenn. Crim. App.,
Knoxville, Mar. 12, 2002); State v. Marcus W. Keener, No. M2000-0017-CCA-R3-CD, 2001
WL 428232, at *6-9 (Tenn. Crim. App., Knoxville, Apr. 26, 2001).

        Additionally, reckless homicide was not recognized as a lesser included offense of
felony murder at the time the Petitioner’s case was tried. See State v. Ely, 48 s.W.3d 710,
718-22 (Tenn. 2001). We conclude that the standard for counsel’s performance was met
when counsel acceded to the existing law. See State v. Benny Wallace, No. 86-208-III, 1987
WL 16073, at *4 (Tenn. Crim. App., Nashville, Aug. 26, 1987) (“[A]ttorneys may not be said
to be ineffective for not anticipating rulings that change or alter existing law.”); see also John
Robert Tory, Jr. v. State, No. E2003-00019-CCA-R3-PC, 2003 WL 23021389, at *2 (Tenn.
Crim. App., Knoxville, Dec. 29, 2003). Although Ely was decided after the Petitioner’s trial,
the decision predated our opinion on the Petitioner’s direct appeal and, therefore, the lesser
included issue, if it had been properly raised in the trial court, could have been available for
appellate review. Nonetheless, the Petitioner has failed to carry his burden of proof to show
any ineffectiveness on the part of his appellate counsel, as we see no reasonable probability
that the outcome of the direct appeal would have been any different. The Petitioner is not
entitled to relief on this issue.

II. Voluntary Manslaughter Instruction
        The Petitioner contends that counsel was ineffective by not requesting an instruction
on voluntary manslaughter as a lesser included offense of felony murder at trial and that
counsel should have raised this issue on appeal. Voluntary manslaughter was not recognized
as a lesser included offense of felony murder at the time the Petitioner’s case was tried. See
State v. Daniel Wade Wilson, No. E2000-01885-CCA-R3-CD, 2001 WL 872442, at *14
(Tenn. Crim. App., Aug. 2, 2001) (holding that voluntary manslaughter is also a lesser
included offense under part (b)(1) of Burns). Again, we conclude that the standard for trial
counsel’s performance was met when counsel acceded to the existing law. See Wallace,
1987 WL 16073, at *4; see also Tory, 2003 WL 23021389, at *2. Additionally, in this
collateral attack proceeding, the Petitioner cannot establish prejudice due to the fact that
voluntary manslaughter was charged on the premeditated count and was rejected by the jury.
See Wilson, 2001 WL 872442 at *11, 15. The Petitioner has failed to establish he is entitled
to post-conviction relief.

III. Opening Statement
       There are two major cases in Tennessee dealing with the failure of counsel to fulfill
the promises made to the jury during voir dire or opening statement. In State v. Zimmerman,
823 S.W.2d 220, 221 (Tenn. Crim. App. 1991), the defendant was charged with second

                                              -15-
degree murder. During opening statement, counsel stated, in accordance with trial strategy,
that the defendant and a psychologist would testify regarding the defense of “battered wife
syndrome.” However, at the conclusion of the State’s proof, counsel recommended to the
defendant that she not testify. Id. at 222. Additionally, counsel rested without presenting the
testimony of an expert regarding battered wife syndrome or any additional proof. Id. This
Court concluded that counsel was ineffective, stating that “nothing changed during the course
of the trial . . . . In other words, there appears to have been no basis for the sudden change
in strategy.” Id. at 226.

       In King v. State, 989 S.W.2d 319, 330 (Tenn. 1999), the defendant, who was
convicted of felony murder, complained that his counsel “abandoned the defense theory of
voluntary intoxication after having introduced it to the jury during the opening statement.”
During King’s trial, his ex-girlfriend, Lori Eastman Carter,

       testified for the prosecution, over the objection of defense counsel, that [King]
       had attempted to kill her on October 13, 1982. According to Ms. Carter, the
       appellant hit her with a slapstick numerous times while repeatedly asking her
       “how it felt to be dying, so that the next woman he killed he would know how
       she felt.” Ms. Carter testified that the appellant was sober when he attacked
       her with the slapstick.

Id. at 331.

        At the post-conviction hearing, defense counsel asserted that “he decided to abandon
the use of voluntary intoxication to defend [the defendant’s] actions after the testimony of
[the defendant’s] ex-girlfriend, Lori Eastman Carter . . . [because] Ms. Carter’s testimony
was unexpected and devastating to the appellant’s case.” Id. Counsel asserted that “the
theory of voluntary intoxication was rendered futile after Ms. Carter’s testimony.”
Accordingly, counsel “revised the defense theory solely in response to the surprise testimony
of Ms. Carter.” Id. Our supreme court determined that counsel’s change of strategy during
trial did not constitute ineffective assistance. Id.

        In the instant case, the Petitioner argues that counsel was ineffective in telling the jury
during opening statement that two additional expert witnesses would be called to testify
regarding the Petitioner’s mental state and, moreover, “that the jury never heard about a
majority of the things promised to them in opening statement by trial counsel.” The
post-conviction court observed in its order denying relief that “[t]his appears to be a matter
of trial strategy.” According to the testimony of counsel at the post-conviction hearing,
following the conclusion of the Petitioner’s testimony, counsel believed that the defense
should “stop on a high note.” Counsel relayed that the Petitioner testified better than

                                               -16-
expected and that they made a “strategic call” not to call the remaining two experts. They
did not believe the experts “would have been as good a witness in front of the jury as [the
Petitioner] was.” Moreover, the jury had already heard one expert testify regarding the
Petitioner’s low serotonin levels; the Petitioner acknowledged in his brief that his own
testimony at trial provided some of the details promised during opening statement and that
those details were expected to be provided by the expert witnesses. The decision to deviate
from the strategy announced in the opening statement was a sound decision, and also a
successful one, resulting in a conviction for second degree, rather than first degree, murder.
Counsel did not render ineffective assistance.

IV. “Knowing” Definition
       Next, the Petitioner claims that the trial court erred in presenting to the jury definitions
of culpable mental states contrary to State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002).
In Page, this Court reversed a conviction of second degree murder, a result-of-conduct crime,
because the trial court instructed the jury that a person acts knowingly if the person acts with
merely an awareness that his conduct is of a particular nature or that particular circumstances
exist rather than instructing that the person acts knowingly, for purposes of a
result-of-conduct crime, only when the person is aware that the conduct is reasonably certain
to cause the result. Id. at 788. The trial court in the Petitioner’s case utilized the same
instruction as that condemned in Page. Page was filed while the Petitioner’s case was
pending on appeal.

        Nonetheless, we defer to State v. Faulkner, 154 S.W.3d 48 (Tenn. 2005). The
Faulkner court, in performing a plain error analysis, said, “We are not convinced, however,
that the inclusion of . . . language [inapt per Page] is an error of constitutional dimension
when the instruction also includes the correct result-of-conduct definition.” 154 S.W.3d at
58-59.     More pointedly, the Faulkner court said, “The superfluous language in the
‘knowingly’ definition did not lessen the burden of proof because it did not relieve the State
of proving beyond a reasonable doubt that the defendant acted knowingly.” Id. at 59. We
agree with the post-conviction court that the Petitioner has failed to show he is entitled to
relief on this issue.

V. Victim’s Past Conduct
        In another issue, the Petitioner asserts that counsel was ineffective for not introducing
proof of the victim’s prior violent acts in order to corroborate proof that the victim was the
first aggressor. In the evidentiary hearing, however, the Petitioner offered only a “Record
of Arrest” which showed that the victim was arrested for unlawful possession of a weapon
on June 21, 1996, and an affidavit of complaint showing facts leading to a misdemeanor
conviction for harassment. Counsel testified that he knew of these convictions prior to trial
and was also aware of an additional arrest for assault and vandalism (no conviction resulted).

                                               -17-
The Petitioner did not present witnesses at the evidentiary hearing in support of the claim of
a violent reputation or of prior violent acts. The failure to present such proof defeats the
Petitioner’s claim. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The
Petitioner has not shown that trial counsel was deficient in failing to develop or present first
aggressor evidence. Furthermore, the Petitioner has not shown that there was a reasonable
probability that the result of the proceedings would have been any different had such
evidence been offered. This issue is without merit.

VI. Voluntary Intoxication Instruction
         The Petitioner contends that counsel’s failure to request the instruction on voluntary
intoxication constituted deficient representation and was not an informed trial strategy.
Tennessee Code Annotated section 39-11-503(a) provides that while intoxication is not in
itself a defense to prosecution, a defendant’s intoxication, whether voluntary or involuntary,
is admissible in evidence if it is relevant to negate a culpable mental state. We agree with
Petitioner that he is entitled to a jury instruction on voluntary intoxication if it is fairly raised
by the proof, but “[p]roof of intoxication alone is not a defense to a charge of committing a
specific intent crime nor does it entitle an accused to jury instructions . . . .” Harrell v. State,
593 S.W.2d 664, 672 (Tenn. Crim. App. 1979).

       Counsel testified at the post-conviction hearing that an instruction on voluntary
intoxication would have been contrary to his trial strategy, that the Petitioner’s low serotonin
levels caused him to shoot the victim. It is unclear to us why counsel believed that an
instruction on voluntary intoxication would have defeated the defense theory. Diminished
capacity was charged to the jury. Nonetheless, counsel was required to choose his strategy,
and we are not at liberty to second-guess trial strategy that is made with appropriate planning
and preparation. Adkins, 911 S.W.2d at 347; see also James Rines v. State, No.
03C01-9606-CC-00210, 1997 WL 33654, at *4 (Tenn. Crim. App., Knoxville, Jan. 28, 1997)
(concluding that trial counsel was not deficient for failing to develop defense of intoxication
when she explained that defenses of intoxication and self-defense were incompatible in the
case). Further, the Petitioner has failed to show that he was prejudiced as a result of
counsels’ decisions; we are unpersuaded that there is a reasonable likelihood that the jurors
would have reached different verdicts had the instruction on voluntary intoxication been
given. This issue is without merit.

VII. Closing Argument
       The Petitioner asserts that he received the ineffective assistance of counsel because
his counsel did not object to improper statements in the State’s closing argument. No
objection was made when the prosecutor gave her personal opinion and compared this case
to other cases she had handled, stating, “And what you can do, and it’s truly—I’ve never seen
that many cases come together like this—it’s truly like a puzzle.” The Petitioner also submits

                                                -18-
that another statement pertaining to a prior robbery by the Petitioner “misled the jury as to
the inferences it may draw.” The robbery was only relevant for impeachment purposes, and
the State referenced it during its argument on the general issue of the Petitioner’s guilt.

      This Court has considered whether the failure to object during a closing argument is
generally sufficient for a showing of ineffective assistance of counsel. See Gregory Paul
Lance v. State, No. M2005-01675-CCA-R3-PC, 2006 WL 2380619 (Tenn. Crim. App.,
Nashville, Aug. 16, 2006). In Lance, this Court held as follows:

       Because the reviewing court must indulge a strong presumption that the
       conduct falls within the range of reasonable professional assistance and may
       not second-guess the tactical and strategic choices made by counsel unless
       those choices were uninformed by inadequate preparation, it is highly unlikely
       that appellate counsel could have succeeded in meeting either the deficiency
       or the prejudice prong of the ineffective assistance of counsel claim based on
       trial counsel’s failure to object to the improper closing argument.

Id. at *6 (citations omitted); see Strickland, 466 U.S. at 690; Hellard, 629 S.W.2d at 9.

        This Court approaches the present case under the same legal framework. The
decisions of a trial attorney as to whether to object to opposing counsel’s arguments are often
primarily tactical decisions. As the Lance court noted, attorneys may often choose not to
object to damaging evidence for strategic reasons, such as “to avoid emphasizing [the
unfavorable evidence] to the jury.” Lance, 2006 WL 2380619, at *6. Counsel testified that,
while the statements were technically improper, he did not believe that they were egregious
enough to result in prejudice to the Petitioner’s case. Counsel testified that he generally does
not object during the State’s closing arguments unless he determines the statements are
actually prejudicial to his client. He said his belief is that the State in turn affords him some
leeway. We conclude that the failure to object to the closing argument in this case does not
rise to the level of constitutionally deficient performance. Additionally, we agree with the
post-conviction court that any error in this regard would be deemed harmless; thus, the
Petitioner has failed to establish prejudice.

VIII. Blakely v. Washington
        Finally, the Petitioner argues that counsel was ineffective in failing to raise sentencing
issues pursuant to Blakely v. Washington, 542 U.S. 296 (2006). He urges us to apply Blakely
and its progeny retroactively to his case.

       To the extent that the Petitioner is attempting to gain relief from his sentence via
retroactive application of the Blakely decision, this Court has repeatedly held that Blakely

                                              -19-
did not announce a new rule of law entitled to retroactive application in a post-conviction
proceeding. See e.g., Glen Cook v. State, No. W2006-01514-CCA-R3-PC, 2008 WL 821532,
at *10 (Tenn. Crim. App., Jackson, Mar. 27, 2008), perm. to appeal denied, (Tenn. Sept. 29,
2008); Carl Johnson v. State, No. W2003-02760-CCA-R3-PC, 2005 WL 181699, at *4
(Tenn. Crim. App., Jackson, Jan. 25, 2005); Donald Branch v. State, No.
W2003-03042-CCA-R3-PC, 2004 WL 2996894, at *9-10 (Tenn. Crim. App., Jackson, Dec.
21, 2004). We see no reason to deviate from this jurisprudence today. Therefore, the
Petitioner has not alleged a cognizable basis for post-conviction relief, and he is not entitled
to relief on this issue.

                                         Conclusion
       Based upon the foregoing reasoning and authorities, we conclude that the Petitioner
has not shown he is entitled to relief on grounds of ineffective assistance of counsel. The
judgment of the Shelby County Criminal Court denying post-conviction relief is affirmed.




                                                     ______________________________
                                                     DAVID H. WELLES, JUDGE




                                              -20-
