             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE                  FILED
                           JUNE 1997 SESSION
                                                              January 15, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
GREGORY MORGAN,              )
                             )
             Appellant,      )    No. 03C01-9611-CR-00404
                             )
                             )    Bradley County
v.                           )
                             )    Honorable Mayo L. Mashburn, Judge
                             )
STATE OF TENNESSEE,          )    (Post-Conviction)
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Ashley L. Ownby                   Charles W. Burson
180 N. Ocoee Street               Attorney General of Tennessee
P.O. Box 176                             and
Cleveland, TN 37364-0176          Marvin E. Clements, Jr.
                                  Assistant Attorney General of Tennessee
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Jerry N. Estes
                                  District Attorney General
                                  203 E. Madison Avenue
                                  Athens, TN 37303-0647




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



             The petitioner, Gregory Morgan, appeals as of right from the Bradley

County Criminal Court’s order denying him post-conviction relief from his 1990 first

degree felony murder conviction and resulting life sentence. The judgment of

conviction was affirmed on appeal. State v. Morgan, 825 S.W.2d 113 (Tenn. Crim.

App. 1991). The petitioner presents the following issues for our review:

             I. Whether the petitioner’s due process rights were violated in
             that:

                    (A) The trial court failed to give a jury instruction
                    regarding the effect of the petitioner’s voluntary
                    intoxication;

                    (B) The trial court improperly instructed the jury
                    that it should stop deliberations once it found the
                    petitioner guilty of felony murder, thus restricting
                    consideration of self-defense or provocation
                    evidence;

                    (C) The trial court improperly instructed the jury
                    so as to direct a finding on an essential element
                    of first degree murder; and

                    (D) The trial court improperly instructed the jury
                    on reasonable doubt by its use of the phrases
                    “moral certainty” and “let the mind rest.”

             II. Whether the petitioner received the ineffective assistance
             of counsel in that:

                    (A) His trial attorneys refused to allow him to
                    testify;

                    (B) His trial attorneys failed to secure the
                    testimony of a material defense witness;

                    (C) His trial attorneys failed to make a proper
                    record for review of the claim that jurors should
                    have been stricken for cause; and

                    (D) His trial attorneys failed to challenge certain
                    jury instructions.

We conclude that the post-conviction court did not err and properly denied the petitioner

relief.




                                             2
                                    CONVICTING TRIAL

                The petitioner was originally charged with felony murder, premeditated

and deliberate murder, armed robbery and grand larceny. The case dealt with events

that occurred at an Interstate 75 rest area. The details of the evidence are provided in

this court’s opinion on the direct appeal. See Morgan, 825 S.W.2d at 115-16.

Essentially, the state’s proof showed that the petitioner and Clifton Swift, traveling from

Florida, stopped at the rest area, ostensibly to steal a car. The petitioner met the

victim, and the two left the rest area twice in the victim’s car. Only the petitioner

returned the second time. Swift testified for the state and said that the petitioner told

him that he was going to “roll a faggot.” Swift stated that the petitioner admitted to

shooting the victim five times in the head and taking his money. Swift said that he had

been asleep at the rest area. The two men drove the victim’s car to Indiana, where they

separated.



                The petitioner was arrested in Indiana and gave several statements. First,

he denied riding from Florida with Swift and denied knowing anything about the killing.

In his second statement, he said that he had been asleep and that Swift admitted to

killing the victim. In his final statement, the petitioner admitted to killing the victim. He

said that the victim tried to get him drunk and sexually assaulted him in the car. He said

that they struggled, and he pulled out a gun. The petitioner said that he pulled the

trigger accidentally, and it kept discharging. He said that Swift then decided to take the

victim’s car.




                              POST-CONVICTION HEARING




                                              3
              At the evidentiary hearing, the petitioner testified that he wanted to testify

at trial, but his attorneys told him that he would incriminate himself and “mess

everything up.” He said that he followed their advice, but he believed it to be wrong.

Although he admitted that he killed the victim, he claimed that his testimony about the

victim getting him drunk and making homosexual advances would have helped his

case. He said that he had been staggering around that night and that Swift’s testimony

at trial indicated that the petitioner was drunk. He said he told his attorneys that he and

the victim had drunk one-half gallon of vodka. To explain the five shots, the petitioner

stated that the gun was an automatic weapon.



              The petitioner testified that there were three witnesses that should have

been called in his defense because they would have shown that Swift was not as

innocent as he claimed. He said that while he and Swift were in jail, the witnesses

heard Swift say that he made a deal with the state to testify against the petitioner. He

said Swift denied the existence of such a deal in his testimony at trial.



              One of the petitioner’s trial attorneys testified about representing the

petitioner. He said that he and his co-counsel advised the petitioner not to testify

because of his three different statements and their belief that the prosecutors would

“destroy” him on cross-examination. He said that the petitioner was not articulate. The

attorney also questioned how well the petitioner’s version of the facts would stand

against questioning by the state.



              The petitioner’s trial attorney testified that the petitioner changed his story

during the case. He said that the petitioner’s purported witnesses claimed to have

evidence indicating that Swift was the perpetrator, however, the petitioner admitted to

his attorneys that he killed the victim. The attorney acknowledged that the petitioner

was the only witness to the actual killing, but he said he still did not think that the



                                              4
petitioner should have testified. The attorney stressed that although they advised the

petitioner not to testify, the petitioner could have testified if he had so desired.



                The petitioner’s trial attorney said that he took statements from the three

witnesses that the petitioner wanted to call and obtained a continuance because he

could not locate one of the witnesses. However, he said he ultimately questioned using

the witnesses because their testimony was suspect because it pointed to Swift as the

perpetrator.



                The petitioner’s trial attorney could not recall being told that one-half

gallon of vodka had been consumed, nor did he recall the petitioner emphasizing his

intoxication. He was aware of evidence that the petitioner had been drinking, but he

stated that he did not think that intoxication was the “lynchpin” of the case. However,

he said he thought that he and his co-counsel did request an instruction on voluntary

intoxication.



                An assistant district attorney testified that Swift did not make a deal to

receive a set period of jail time. He said that Swift was convicted upon his pleas of

accessory after the fact of first degree murder and Class D felony theft, and he received

an effective sentence of two years.



                The post-conviction court made detailed findings of fact and conclusions

of law. In sum, it found no constitutional errors in the jury instructions and concluded

that the petitioner received quality representation from his attorneys.




                                     I. INSTRUCTIONS




                                                5
              Preliminarily, we note that the state chose in its brief not to address the

merits of the petitioner’s complaints about instructions, electing instead to rely upon

waiver and the fact that the post-conviction record on appeal does not include the

instructions from the trial about which the petitioner complains. None of the record of

the convicting case was made a part of the record on appeal. Although the state’s

answer to the petition in the trial court asserts waiver, the state made no such assertion

at the evidentiary hearing, and the issue was never addressed at the hearing or in the

trial court’s memorandum order. Under such a record, we presume that the state did

not pursue waiver in the trial court. Also, we may take judicial notice of the record in the

direct appeal. See State ex rel. Wilkerson v. Bomar, 213 Tenn. 499, 505, 376 S.W.2d

451, 453 (Tenn. 1964). The record contains the jury instructions given by the trial court.



              The petitioner had the obligation to ensure that the record in this post-

conviction appeal contained all trial court events that are relevant to the issues raised.

See T.R.A.P. 24. In a post-conviction case, this often means including substantial

portions of the record from the original case, whether by exhibit or by consolidation of

the appellate record existing in the convicting case. In any event, the state should

address the merits of the issues raised on appeal even if it believes that a procedural

default has occurred. Under the foregoing circumstances, we will review the petitioner’s

issues on appeal.



                                    (A) INTOXICATION

              The petitioner contends that the trial court’s failure to instruct the jury on

voluntary intoxication violated his due process rights because it omitted from the jury’s

consideration evidence material to his defense. He argues that voluntary intoxication is

a defense to first degree murder because it could have prevented the petitioner from

forming a premeditated and deliberate design to kill. See State v. Bullington, 532

S.W.2d 556, 560-61 (Tenn. 1976). The original record reflects Swift’s testimony that he



                                              6
believed that the petitioner had a lot to drink because the petitioner smelled of alcohol

and was staggering. In his statement to the police, the petitioner said only that the

victim tried to get him drunk. The statement also notes that there was a large bottle of

vodka in the trunk of the victim’s car.



                The post-conviction court found that no request for an instruction was

made and that none of the evidence in the case suggested that the petitioner might

have been intoxicated. The court also noted that the petitioner was convicted of felony

murder, not premeditated and deliberate murder.



                We view due process to be implicated by the failure to instruct a jury

regarding fundamental defenses fairly raised by the evidence. See, e.g., Connecticut v.

Johnson, 460 U.S. 73, 103 S. Ct. 969 (1983). Also, we believe that Swift’s testimony

and the petitioner’s statement fairly raise the issue of the petitioner’s mental state.

However, the fact that the petitioner was convicted of felony murder dispels the

concerns raised by the petitioner. He was not convicted of premeditated and deliberate

murder, which includes the mental state that is the cornerstone of the petitioner’s

argument. In light of this fact, we conclude that the petitioner has failed to show how

his due process rights were violated by the lack of an instruction on voluntary

intoxication.



                              (B) SEQUENTIAL INSTRUCTION

                The petitioner contends that the trial court erred by instructing the jury to

consider premeditated and deliberate murder and lesser included offenses only after

determining that the petitioner was not guilty of felony murder. He argues that this

instruction precluded the jury from considering his claim of self-defense. This court has

twice rejected this argument. In State v. Rutherford, 876 S.W.2d 118, 119-20 (Tenn.

Crim. App. 1993), this court determined that a sequential jury charge did not prevent the



                                               7
jury from fulfilling its duty to determine the degree of homicide. This court reached the

same conclusion in State v. Raines, 882 S.W.2d 376, 381-82 (Tenn. Crim. App. 1994).

We view these cases to be controlling.



                               (C) FIRST DEGREE MURDER

              The petitioner contends that the trial court’s instruction on first degree

murder violated his right to due process because it directed a finding of malice, an

essential element of first degree murder. The trial court instructed the jury as follows:

              Malice is an essential element of this offense, and it may be
              either express or implied . . . . Express malice is actual malice
              against the party slain and exists where a person actually
              contemplates the injury or wrong he inflicts. Implied malice is
              malice not against the party slain, but malice in general, or that
              condition of mind which indicates a wicked, depraved, and
              malignant spirit and heart, regardless of social duty, and fatally
              bent on mischief. Implied malice may be found to exist where
              the wrongdoer did not intend to slay the person killed, but
              death resulted from a consciously unlawful act, done
              intentionally and with knowledge on the wrongdoer’s part that
              the act was directly perilous to human life. In this event, there
              is implied such a high degree of consciousness and willful
              recklessness as to amount to that malignity of heart
              constituting malice.

A few sentences later, the trial court stated, “You’re reminded that the State always has

the burden of proving every element of the crime charged beyond a reasonable doubt.”



               The petitioner contends that in the last sentence of the instruction, the trial

court essentially directed a finding of malice. He argues that when the trial court told

the jury that “in this event there is . . . malice,” it was saying that in this particular case

there is malice. We disagree. A fair reading of the instruction shows that the trial court,

in explaining implied malice, said that in the event that death results from a wrongdoer’s

conscious unlawful act, done intentionally and with knowledge that the act was perilous

to human life, malice can be implied even if the wrongdoer did not have the intent to kill

the victim. Thus, the last sentence simply relates to the previous sentence. In no way

do we read the last sentence to be a finding by the trial court that there is malice in the



                                                8
present case, nor do we believe that the jury would have so concluded, particularly in

light of the fact that the trial court repeated that the state always carried the burden of

proof beyond a reasonable doubt. This issue is without merit.



                                (D) REASONABLE DOUBT

              The petitioner contends that the trial court’s instruction on reasonable

doubt lowered the standard of proof for the state. He argues that the trial court’s use of

the phrase “let the mind rest easy” combined with “moral certainty” resulted in a burden

of proof lower than “beyond a reasonable doubt.” The trial court’s instruction to the jury

with respect to the burden of proof was as follows:

              Now reasonable doubt is that doubt engendered by an
              investigation of all of the proof in the case and an inability after
              such an investigation to let the mind rest easily as to the
              certainty of guilt. Reasonable doubt does not mean a
              captious, or a possible, or an imaginary doubt. Absolute
              certainty of guilt is not demanded by the law to convict of any
              criminal charge, but moral certainty is required, and this
              certainty is required as to every proposition of proof requisite
              to constitute the offense. The state must prove beyond a
              reasonable doubt all of the elements of the crimes charged . .
              ..


              This court has previously determined that reasonable doubt instructions

nearly identical to the one given in the present case were proper. See State v. Sexton,

917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364,

365 (Tenn. Crim. App. 1994). This issue is without merit.



                     II. INEFFECTIVE ASSISTANCE OF COUNSEL

              The petitioner claims that his counsel was ineffective for (1) refusing to

allow the petitioner to testify, (2) failing to secure the testimony of a witness, (3) failing

to develop a record to support the petitioner’s allegation that all jurors who read a

newspaper article the day before trial should have been stricken for cause, and (4)

failing to object to the erroneous jury instructions. The state contends that the petitioner

received the effective assistance of counsel.


                                               9
              Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is on the petitioner to show (1) that counsel’s performance

was deficient and (2) that the deficiency was prejudicial in terms of rendering a

reasonable probability that the result of the trial was unreliable or the proceedings

fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44

(1993). The Strickland standard has been applied to the right to counsel under Article I,

Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n. 2

(Tenn. 1989).



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. The court stated that the range of competence was to be measured by the

duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in reviewing counsel’s conduct, a “fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).



              We also note that the approach to the issue of ineffective assistance of

counsel does not have to start with an analysis of an attorney’s conduct. If prejudice is

not shown, we need not seek to determine the validity of the allegations about deficient

performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.



                        (A) PETITIONER’S RIGHT TO TESTIFY



                                            10
              The petitioner contends that his trial attorneys were ineffective because

they refused to allow him to testify, thus precluding a successful claim of self-defense.

At the post-conviction hearing, the following colloquy occurred between the court and

the petitioner:

              COURT: They didn’t. They didn’t disallow you from testifying.
              You just got through admitting--

              PETITIONER: Well, right, well, that’s what I mean.

              COURT: -- that you were the one that made the decision.

              PETITIONER: Because of--

              COURT: They didn’t tell you, “You are not going to testify,” did
              they?

              PETITIONER: No, they didn’t, but they convinced me that it
              would be against my best interest to testify.

This colloquy comports with the trial attorney’s testimony at the post-conviction hearing

that although he and his co-counsel told the petitioner that it would not be wise for him

to testify, they did not prevent him from testifying. Because there is no evidence in the

record that the petitioner was prohibited from testifying, this issue is without merit.



                                  (B) MISSING WITNESS

              The petitioner contends that his trial attorneys were ineffective because

they failed to secure the testimony of a witness who would have provided testimony that

contradicted that of Clifton Swift. The petitioner does not specify how he was

prejudiced, nor does he provide specific information about what the missing witness

would have said, other than that the witness generally gave information that could have

helped the defense by contradicting Swift’s trial testimony.



              First, we conclude that the petitioner has failed to show how his attorneys’

performance was deficient. The petitioner admitted at the post-conviction hearing that

the missing witness had testified at the preliminary hearing but could not be located for

trial. He said that he thought his attorneys should have tried to obtain a continuance or


                                             11
a stipulation from the state regarding the substance of the witness’ testimony. The

record reflects that the trial court did grant one continuance in order for the petitioner’s

attorneys to locate the witness, but the witness could not be found. The record reflects

that the petitioner’s attorneys tried to get the state to stipulate to the testimony, but the

state refused. The petitioner offers no suggestions as to what more his attorneys could

have done. Furthermore, after a review of the transcript of a conversation between the

missing witness and the petitioner’s attorney at the jail, we conclude that the petitioner

has failed to show that he was prejudiced.



                               (C) RECORD OF VOIR DIRE

              The petitioner contends that his trial attorneys were ineffective for failing

to preserve the record with respect to his claim that jurors were exposed to prejudicial

pretrial publicity. He argues that a newspaper article published the day before his trial,

containing incorrect and misleading information, was reason to strike for cause the

jurors who had read the article. He claims that his attorneys failed to preserve the

record on this issue because they failed to submit an accurate accounting of their

peremptory challenges and failed to specifically request that any juror be removed from

the panel.



              Before his conviction will be overturned on appeal, the petitioner must

show that the jurors were biased or prejudiced against him. State v. Melson, 638

S.W.2d 342, 360-61 (Tenn. 1992). Mere exposure to news accounts of the incident

does not, standing alone, establish bias or prejudice. Prospective jurors can have

knowledge of the facts surrounding the crime and still be qualified to sit on the jury.

State v. Bates, 804 S.W.2d 868, 877 (Tenn. 1991). The test is “whether the jurors who

actually sat and rendered verdicts were prejudiced by the pretrial publicity.” State v.

Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989).




                                             12
              We do not believe that the petitioner has carried his burden with respect

to this issue. Although this court noted on direct appeal that review of the issue was

made difficult by the attorneys’ failure to cite to the record and failure to indicate the use

of peremptory challenges, this court nevertheless held that the issue was without merit.

Certainly, the better practice would have been to include on the record the use of

peremptory challenges. Nevertheless, the petitioner has not shown prejudice. At the

post-conviction hearing, the trial court noted that the venire was questioned about the

article and that everyone who read the article stated under oath that they could set

aside the information and decide the case based upon the evidence presented at trial.

Thus, the petitioner has failed to show that the jurors who were empaneled were biased

or prejudiced against him.



                                    (D) INSTRUCTIONS

              Finally, the petitioner contends that his trial attorneys were ineffective

because they failed to challenge the jury instructions with respect to malice and

reasonable doubt. He also argues that his attorneys were ineffective for failing to

advise the jury that his codefendant was an accomplice as a matter of law.



              With respect to the petitioner’s contention that his trial attorneys were

ineffective for failing to challenge the malice and reasonable doubt jury instructions,

having concluded that the instructions were proper, we hold that the petitioner has

failed to establish ineffectiveness. As for his argument about an accomplice, the

petitioner indicates in his brief that he relies on the argument and authorities advanced

earlier in the brief. However, nowhere in the brief is there any argument or citation to

authority that would support his contention that his trial attorneys were ineffective for

failing to tell the jury that, as a matter of law, Swift was an accomplice, other than citing

authority that notes that an accomplice instruction must be requested.




                                             13
              In any event, we note that the trial court instructed the jury about

accomplices and their significance and left it to the jury to determine if Swift was an

accomplice. Swift’s testimony at the trial, as well as the petitioner’s final statement to

the police, did not present Swift as an accomplice to the petitioner’s murder of the

victim. Moreover, the petitioner’s statement to the police would sufficiently corroborate

Swift’s testimony. We do not believe that the petitioner has shown prejudice in this

matter.



              In consideration of the foregoing and the record as a whole, we conclude

that the trial court properly denied the petition for post-conviction relief.



                                                   ________________________________
                                                   Joseph M. Tipton, Judge


CONCUR:



___________________________
John H. Peay, Judge



___________________________
James Curwood W itt, Jr., Judge




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