             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   Assigned on Briefs March 11, 2003

                    RODRICK JOHNSON v. STATE OF TENNESSEE

                         Appeal from the Criminal Court for Davidson County
                             No. 98-A-87    J. Randall Wyatt, Jr., Judge



                       No. M2002-01212-CCA-R3-PC - Filed September 2, 2003


The petitioner, Rodrick Johnson, appeals the denial of his petition for post-conviction relief,
asserting that: (1) the post-conviction court erred by failing to make findings and conclusions as to
each issue; (2) the jury instructions provided by the trial court lowered the State's burden of proof;
(3) the trial court erred in not instructing as to the lesser-included offense of facilitation; and (4) he
was denied the effective assistance of counsel on appeal. We affirm the order of the post-conviction
court dismissing the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.
RILEY, J., joined.

Rodrick Johnson, Only, Tennessee, Pro Se (on appeal), and Ellsworth D. Ware, III, Nashville,
Tennessee (at trial), for the appellant, Rodrick Johnson.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                                      OPINION

        In November of 1998, the petitioner was convicted of second degree murder and sentenced
to confinement for twenty-one years. This court affirmed the conviction on direct appeal. See State
v. Roderick Johnson,1 No. M1999-00605-CCA-R3-CD, 2000 WL 1717542, at *4 (Tenn. Crim. App.
Nov. 17, 2000), perm. to appeal denied, (Tenn. Apr. 24, 2001). The conviction resulted from the
stabbing death of William Edwin Binkley, as the opinion of this court set out on direct appeal:



         1
          W e note the petitioner utilizes a different spelling of his first name in his post-conviction petition from that
used in the dire ct app eal.
                        On October 24, 1997, between 8:30 and 9:00 p.m., Derrick
               and Amanda Barrett returned home from an evening of shopping.
               They passed a vehicle parked in the apartment complex's parking lot
               with its windows rolled down, and they noticed an African-American
               infant restrained in an infant seat in the vehicle's back seat. After
               approximately 30 minutes passed, they grew concerned for the
               infant's well-being, and Derrick Barrett wrote down the vehicle's
               license plate number. Amanda Barrett phoned 911 to report the
               abandoned child. Subsequent to Amanda Barrett's phone call to 911,
               Derrick Barrett witnessed two African-American males run out of an
               apartment, get into the vehicle, and drive away. The police checked
               the license number that Derrick Barrett copied and determined [the
               petitioner] to be the owner of the vehicle.

                       While [the petitioner's] vehicle was in the parking lot,
               numerous witnesses testified as to a commotion occurring in [the
               victim's] second floor apartment. Witnesses reported hearing the
               sounds of threats, pleading, and fighting for approximately an hour.
               One witness heard someone yell, "where's my money?" Another
               witness heard someone say, "where's the dope?" Although several
               residents phoned 911 throughout the ordeal, they were told that
               officers were not available. Accordingly, a resident phoned the
               victim's mother, Francis Hampton, and informed her that her son was
               in peril. Hampton arrived within 10 minutes of the phone call,
               knocked on the victim's locked door, and demanded entry. She
               walked back down the steps to meet the apartment manager to
               procure a key to the victim's door. Suddenly, two African-American
               males exited the victim's apartment, walked directly by her on the
               steps, and ran to their vehicle. At trial, Hampton identified [the
               petitioner’s] brother, the co-defendant, but was unable to identify the
               other male because he wore a hat down over his face.

                       Hampton entered the victim's apartment and found him lying
               on the floor in a pool of his own blood. He was transported to
               Vanderbilt Hospital by emergency personnel and died three days
               later. It was subsequently determined that his death resulted from
               being beaten and stabbed 41 times.

Id. at *1.

        Initially, we note that the petitioner did not file a notice of appeal within the statutory
limitations period. See Tenn. R. App. P. 4(a). Tennessee Rule of Appellate Procedure 4(a) requires
that a notice of appeal must "be filed with and received by the clerk of the trial court within 30 days


                                                 -2-
after the date of entry of the judgment appealed from." The deadline for the filing of the notice of
appeal was March 28, 2002, and the petitioner filed his notice of appeal on May 2, 2002. The timely
filing of a notice of appeal is not, however, a prerequisite to the jurisdiction of this court. The
requirement may be waived in the interest of justice. Id.; State v. Scales, 767 S.W.2d 157, 158
(Tenn. 1989). Here, the record establishes that the attorney who was appointed to represent the
petitioner in the post-conviction court did not file either a notice of appeal or a motion to withdraw
as counsel after the dismissal of the petition by the post-conviction court. See Tenn. Sup. Ct. R. 13,
§ 1(i). The petitioner asserts that he filed a pro se notice of appeal immediately upon learning that
the dismissal of his petition had not been appealed. Under these circumstances, we conclude that
the interest of justice requires that the timely filing of the notice of appeal be waived.

         I. Completeness of Findings and Conclusions by the Post-Conviction Court

       The petitioner’s first claim on appeal is that the trial court did not make findings of fact and
conclusions of law as to each issue raised; and, therefore, this court should reverse the order of
dismissal of the post-conviction petition and remand for a determination as to each issue. In
reviewing this issue, we first will set out the complicated course of this matter through both post-
conviction hearings and the difficulty in identifying exactly which issues were to be determined by
the court.

                                           Pro Se Petition

        The pro se petition for post-conviction relief, bearing a clerk’s stamp of May 7, 2001, set out
the following claims, which we denominate as did the petitioner.

                            Ground I – Ineffective Assistance of Counsel

         Trial counsel was ineffective by failing to: (A) seek a mistrial because of introduction of a
“dying declaration” of the victim; (B) request an instruction as to the weight to be given such a
declaration; (C) raise in the motion for new trial or on appeal the court’s failure to properly instruct
as to the declaration; (D) raise in the motion for new trial or on appeal that the instructions as to the
burden of proof were misleading; (E) object to or raise in the motion for new trial or on appeal that
the trial court’s instruction as to criminal responsibility was erroneous; and (F) object to or raise in
the motion for new trial or on appeal that the trial court allowed “irrelevant and prejudicial blood
evidence to be introduced in trial.”

                       Ground II – Trial Court Errors as to Instructions Given

        The petitioner was denied a fair trial because of an erroneous “burden of proof” jury
instruction and an erroneous criminal responsibility instruction, the latter having the effect of
directing a verdict against him.




                                                  -3-
                   Ground III – Trial Court Errors as to Instructions Not Given

       The trial court failed to instruct the jury as to facilitation and “all lesser included offenses.”

                      First Amended Petition Filed by Appointed Counsel

         Appointed counsel filed an amended petition for post-conviction relief on July 12, 2001,
claiming that the trial court erred (1) by admitting the victim’s statement to his mother as a dying
declaration; (2) by “over-reliance” upon circumstantial evidence; (3) by refusing to instruct as to
facilitation of felony murder; and (4) in sentencing the petitioner to twenty-one years. Thus, all
errors raised by post-conviction counsel in the amended petition were as to actions or inactions by
the trial court. No claims were made in the first amended petition as to ineffective assistance of
counsel.

                                     First Evidentiary Hearing

        At an evidentiary hearing on September 19, 2001, at which trial counsel testified, the
petitioner stated to the post-conviction court that he did not agree with the issues his appointed post-
conviction counsel had presented in the amended petition and had wished to retain the claims of
ineffective assistance of counsel, set out as Grounds I and III in the pro se petition, as well as
“another ground . . . about the jury instruction.” The post-conviction court continued the matter to
allow the petitioner and post-conviction counsel to work out which issues were to be argued,
advising the petitioner that the claims set out in his pro se petition had not been waived.

                           Second Amended Petition Filed by Counsel

        The record on appeal does not include a copy of this pleading, which is described by the
petitioner, in a subsequent pro se motion filed in January 2002, as having raised only “the claim of
ineffective assistance of counsel.”

                                Pro Se Motion to Preserve Claims

         After the first evidentiary hearing and apparently because of dissatisfaction with counsel’s
second amended petition, the petitioner filed a pro se motion in January 2002 asking that “Grounds
II and III” of his pro se post-conviction petition be preserved. Thus, the status of the contentions at
that point appeared to be that the claims of ineffective assistance of counsel raised in the pro se
petition had been replaced by those set out in counsel’s second amended petition, and that Grounds
II and III, which the petitioner himself first had raised, still were being pressed.

                                   Second Evidentiary Hearing

        On February 6, 2002, a second evidentiary hearing was held, with both trial counsel and the
petitioner testifying. At the hearing, post-conviction counsel questioned trial counsel and both he


                                                  -4-
and the petitioner argued the claims set out in the various post-conviction pleadings. Subsequently,
in this opinion, we will set out the testimony and arguments.

       As his first issue on appeal, the petitioner argues that the trial court made findings of fact and
conclusions of law only as to the claims of ineffective assistance of counsel, but not as to the
additional claims he had raised in the original pro se petition. Thus, according to the petitioner’s
argument, the order dismissing the post-conviction petition should be reversed and the matter
remanded for findings and conclusions as to all issues.

        As we understand the various pleadings and the arguments at the post-conviction hearings,
there was substantial overlap of the petitioner’s arguments and those of post-conviction counsel. The
petitioner’s complaints, set out as Grounds II and III in his pro se petition, were alleged errors of the
trial court, that the court erred in its instructions by use of the phrase, “or either of them,” when
instructing as to second degree murder; in its instructions as to criminal responsibility; and in not
instructing the jury as to facilitation. The ineffective assistance of counsel complaints, made by post-
conviction counsel in the second amended petition, and as explained by the petitioner in his brief,
were that trial counsel was ineffective by not raising as issues on appeal that the trial court erred both
in concluding that the victim’s statement to his mother was a dying declaration and by not instructing
the jury as to facilitation. In its findings of fact and conclusions of law, the post-conviction court
expressed the primary issues as being that appellate counsel was ineffective in not raising the claims
that the trial court erred in its instructions to separately consider “the culpability of each defendant”
and by not instructing as to facilitation. As to the two claims, the post-conviction court determined
in its written findings and conclusions that trial counsel was not ineffective as to these matters but
did not determine whether the court itself, then acting as the trial court, erred as to the same matters.
Additionally, the post-conviction court stated in its findings that other claims raised in the various
pre-hearing pleadings filed by the petitioner and his counsel, including admission of the victim’s
statement as a dying declaration, “over reliance by the jury on circumstantial evidence,” and the
propriety of the petitioner’s sentence, “were not emphasized or argued at the hearing.” The court
determined that the “petitioner’s remaining claims which are raised in his petitions are without
merit.”

        The responsibility of the post-conviction court as to making written findings and conclusions
is set out in Tennessee Code Annotated section 40-30-211(b), which provides:

                Upon the final disposition of every petition, the court shall enter a
                final order, and except where proceedings for delayed appeal are
                allowed, shall set forth in the order or a written memorandum of the
                case all grounds presented, and shall state the findings of fact and
                conclusions of law with regard to each such ground.

         The petitioner argues that the post-conviction court did not make findings as to Grounds II
and III, which he had raised in his pro se petition, these being, as we have stated, that the trial court
had erred in its jury instructions as to its use of the phrase “or either of them;” in its charge as to


                                                   -5-
criminal responsibility; and in not instructing as to facilitation. While it is correct that the post-
conviction court did not make express findings and conclusions as to the specific claims set out in
Grounds II and III, it was not entirely clear, as we view the post-conviction hearings, that the
petitioner intended that some of the same claims be presented as both errors of the trial court and of
appellate counsel. We note that the post-conviction court did rule on the claims of error in the
instructions to the jury. However, this was done in the context of whether trial counsel was
ineffective and not as to whether the trial court also had erred in this regard.

         This court determined, in State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984),
that "the failure of the trial judge to abide by the requirement does not always mandate a reversal of
the trial court's judgment." In fact, since the purpose of the requirement for written findings and
conclusions as to each issue is to facilitate appellate review of the post-conviction court's decision,
reversal is not required even though the trial court did not so rule when the record is otherwise
adequate for review. In the present appeal, the issues which the petitioner argues that the post-
conviction court did not consider are matters as to which the record is sufficient for this court to
make determinations. Accordingly, we respectfully disagree that this matter must be remanded for
additional findings and conclusions by the post-conviction court, and now will consider the
remaining issues raised on appeal.

                                       II. Jury Instructions

        The petitioner argues that the trial court erred in its instructions as to second degree murder
and criminal responsibility, thus denying his “right to a fair trial by lowering the State’s burden
needed to convict.” The specific complaint as to the instructions for second degree murder is the
use of the phrase, “or either of them,” as in the sentence “[f]or you to find the defendants, or either
of them, guilty of this offense, the State must have proven beyond a reasonable doubt . . . that the
defendants, or either of them, unlawfully killed the alleged victim; and [] that the defendants, or
either of them, acted intentionally[.]”

        As to this claim, the post-conviction court concluded that “the jury instruction regarding the
jury giving separate consideration to each defendant fairly directs the jury to consider each defendant
on the facts and circumstances that apply to that particular defendant,” and that “[t]he verdict
obviously indicates that the jury, in fact, followed the Court's instruction and returned different
verdicts as to each defendant.”

         The petitioner’s argument includes no authorities agreeing with his interpretation of this
language. In fact, his parsing of the instructions ignores several matters. First, the instructions as
to first degree murder concluded with the same language which the petitioner criticizes as to the
instruction for second degree murder, that if the jury found the defendants, “or either of them,” not
guilty of first degree murder, or had “a reasonable doubt as to the guilt of either of the defendants
as to this offense,” the jury was to “acquit that defendant of this offense” and consider “that
defendant’s guilt or innocence of second degree murder[.]” Obviously, the jury heeded this
instruction, for it convicted the petitioner of second degree murder, although convicting his


                                                 -6-
codefendant of first degree murder. While the petitioner acknowledges that the trial court instructed
the jury that it was to “give separate consideration as to each defendant,” he argues that “[t]his
instruction was not only inconsistent with, but nullified by, the court’s repeated use of the phrase ‘or
either of them’ throughout the instructions when defining the State’s requisite burden of proof
needed to convict.” We respectfully disagree with this argument, which we believe to be pure
speculation. Jury instructions must be reviewed in the context of the overall charge rather than in
isolation, as the petitioner has done. See Sandstrom v. Montana, 442 U.S. 510, 527, 99 S. Ct. 2450,
2461 (1979); see also State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charge is
prejudicial error "if it fails to fairly submit the legal issues or if it misleads the jury as to the
applicable law." State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). The instructions of which the
petitioner complains do neither.

        It is clear from the differing verdicts that the jury gave separate consideration to the charges
against each defendant. Accordingly, we conclude that the record fully supports the determination
of the trial court that this claim is without merit.

        Additionally, the petitioner argues that the instructions as to criminal responsibility were
erroneous. He asserts that the phrase, a defendant is criminally responsible for an offense committed
by another if, with intent to promote or assist the offense, he “solicits, directs, aids or attempts to aid
another person to commit the offense,” is inconsistent with and nullifies the instruction that before
a jury can find a defendant criminally responsible it first must determine “that all of the essential
elements of said offense [have] been proven beyond a reasonable doubt.” According to the
petitioner’s analysis, as we understand it, the result of these instructions was that the State was
required to prove only the essential elements of the offense but not that the petitioner acted with the
intent to promote or assist the offense.

        Again, the petitioner has cited no authorities which support this argument. We believe that
a commonsense reading of this instruction simply is that a defendant cannot be criminally
responsible for an offense committed by another unless the State first has proven beyond a
reasonable doubt the elements of the offense. If the jury determines that the defendant, acting to
promote or assist in the commission of the offense, or to benefit in its proceeds or results, solicited,
directed, aided, or attempted to aid another to commit the offense, then the defendant is criminally
responsible for the offense. We respectfully disagree with the claims that the language is
contradictory or confusing. Accordingly, we concur with the determination of the post-conviction
court that this claim is without merit.

                               III. Ineffective Assistance of Counsel

       In his remaining claim, the petitioner asserts that he was denied the effective assistance of
counsel on appeal, because counsel did not raise as issues on appeal: (1) the trial court's erroneous
admission of the victim's dying declaration to his mother and (2) the trial court's failure to provide




                                                   -7-
a jury instruction on the lesser-included offense of facilitation of first degree murder.2 The State
asserts that because neither issue would have been meritorious, counsel was not ineffective for
failing to present them on direct appeal.

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held
in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).
Where appellate review involves purely factual issues, the appellate court should not reweigh or
reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review
of a trial court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance
of counsel and possible prejudice to the defense are mixed questions of law and fact and, thus,
subject to de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999).

         In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

                   First, the defendant must show that counsel’s performance was
                   deficient. This requires showing that counsel made errors so serious
                   that counsel was not functioning as the “counsel” guaranteed the
                   defendant by the Sixth Amendment. Second, the defendant must
                   show that the deficient performance prejudiced the defense. This
                   requires showing that counsel’s errors were so serious as to deprive
                   the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

                   In any case presenting an ineffectiveness claim, the performance
                   inquiry must be whether counsel’s assistance was reasonable


         2
           For the purposes of our review, we are combining the claim, raised as Ground III in the pro se post-conviction
petition, that the trial court erred in not instructing as to facilitation and, in the seco nd am ended petition, that appe llate
counsel was ineffective for not raising this issue on d irect ap peal.

                                                              -8-
               considering all the circumstances. . . . No particular set of detailed
               rules for counsel’s conduct can satisfactorily take account of the
               variety of circumstances faced by defense counsel or the range of
               legitimate decisions regarding how best to represent a criminal
               defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

         As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). We note that when post-conviction proceedings have included a full evidentiary
hearing, as was true in this case, the trial judge’s findings of fact and conclusions of law are given
the effect and weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact
unless we conclude that the evidence contained in the record preponderates against the judgment
entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing
court must indulge a strong presumption that the conduct of counsel falls within the range of
reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not
second-guess the tactical and strategic choices made by trial counsel unless those choices were
uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
The fact that a strategy or tactic failed or hurt the defense does not alone support the claim of
ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App.
1997). Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”




                                                 -9-
                                        A. Dying Declaration

         As to the victim's “dying declaration,” counsel, who represented the petitioner both at trial
and on appeal, testified that he had practiced law for over thirty years and had tried "several hundred"
murder cases at the time of the petitioner's trial. He said that although he could not recall who had
actually entered the objection, either he or counsel for the codefendant had objected at trial when the
State tried to introduce through witness Francis Hampton, the victim's mother, a statement made by
the victim shortly before his death. He recalled that Ms. Hampton testified that when she asked the
victim what had happened in the apartment, the victim replied, "I didn't owe them any money."
Counsel believed that the trial court had correctly ruled that the statement was admissible under the
dying declaration exception to the hearsay rule and that, in context, the testimony was not
particularly damaging to the petitioner. Counsel explained that the victim's statement did not in any
way identify the petitioner, and no evidence was offered at trial that the victim owed the petitioner
money. He recalled that the codefendant testified at trial that the victim owed him money. Counsel
stated that he chose not to raise the issue on direct appeal because he "tried to only raise issues that
[he] thought had some degree of being successful. . . . [and he] felt that it was not a valid issue."

        We have reviewed the trial transcript and note that counsel for both the petitioner and his
codefendant objected to the statement of the victim to his mother, “Momma, I didn’t owe them any
money. I didn’t owe them any money,” arguing that it was not a dying declaration. However, the
trial court ruled that this statement was admissible as a dying declaration. Trial counsel for Robert
Johnson, the codefendant, raised the issue on direct appeal, but this court agreed with the trial court’s
determination that the statement was a dying declaration:

                Given the facts, [the victim’s] belief that his death was imminent can
                be readily inferred. Since the evidence supports the trial court's
                conclusion that the victim was aware of his impending death at the
                time he made the statement to his mother, we cannot say that the
                evidence preponderates against the trial court's conclusion that [the
                victim’s] statement was a dying declaration. Hence, it was admissible
                under the hearsay exception for dying declaration, Tenn. R. Evid.
                804(b)(2), and the trial court did not err. Defendant is not entitled to
                relief on this issue.

State v. Robert Earl Johnson, No. M2000-01647-CCA-R3-CD, 2001 WL 1180524, at *12 (Tenn.
Crim. App. Oct. 8, 2001), perm. to appeal denied (Tenn. Apr. 1, 2002).

        As to this claim, the post-conviction court determined that trial counsel properly exercised
his discretion in deciding that the “dying declaration” claim would have been unsuccessful on appeal,
and that he should raise only those issues which he believed might be successful. We agree and
conclude that the petitioner failed to establish that he was prejudiced by the fact trial counsel did not
raise on direct appeal a claim which was without merit.



                                                  -10-
                               B. Jury Instruction as to Facilitation

          As to the petitioner's second allegation, counsel testified that while he could not specifically
recall requesting an instruction on facilitation, it was his standard practice to make such a request
when the crime involved more than one participant and where his client was charged under a
criminal responsibility theory. Counsel, who relied on an alibi defense at trial, stated that he did not
raise as an issue on direct appeal the fact that the trial court had not instructed the jury as to
facilitation because "in looking back on the facts of this case . . . it would have almost been . . .
frivolous." He did, however, acknowledge that he “could have overlooked it as a matter of oversight.
But . . . I didn't leave the [c]ourtroom thinking that there had been an error made by [the trial court]
charging or refusing to charge facilitation.” It was his opinion that the petitioner “was extremely
fortunate in receiving second degree murder rather than first degree murder.”

       The post-conviction court denied relief as to this claim in a general manner, finding that
counsel was not ineffective but was “a very experienced and competent trial attorney whose
representation of [the petitioner] was well within the range of competence demanded of criminal
defense attorneys.” Further, the post-conviction court accredited the testimony that the petitioner
“was very fortunate to not be convicted of first degree murder under the facts of this case.”

       The trial and appeal of this matter straddled the decision of our supreme court in State v.
Burns, 6 S.W.3d 453 (Tenn. 1999), the trial occurring in 1999 before the release of Burns and
appellate counsel filing the petitioner’s brief on direct appeal after its release. The court explained
in Burns “that facilitation [is] a lesser-included offense of criminal responsibility for first-degree
murder.” Id. at 470. While the jury at the petitioner’s trial was instructed as to criminal
responsibility, it was not instructed as to facilitation.

       Our supreme court explained in State v. Moore, 77 S.W.3d 132, 134 (Tenn. 2002), the
responsibility of the trial court to instruct as to lesser-included offenses and the process to utilize in
determining which such offenses must be in the charge to the jury:

                [I]t is the duty of the trial judge to instruct the jury as to the law of a
                lesser-included offense if he or she determines that: (1) reasonable
                minds could accept the offense as lesser-included; and (2) the
                evidence is legally sufficient to support a conviction for the
                lesser-included offense. State v. Burns, 6 S.W.3d 453, 469 (Tenn.
                1999). The judge shall instruct the jury on all lesser-included
                offenses notwithstanding a request from the defendant. Tenn. Code
                Ann. § 40-18-110(b) (1997 Repl.).

Id. (footnote omitted).

       The question of whether a given offense should be submitted to the jury as a lesser-included
offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (citing


                                                   -11-
State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed questions of law
and fact is de novo with no presumption of correctness. Id.; see also Burns, 6 S.W.3d at 461.

       Tennessee Code Annotated section 39-11-403(a) provides, in relevant part, as to criminal
responsibility for facilitation of a felony:

                       A person is criminally responsible for the facilitation of a
               felony if, knowing that another intends to commit a specific felony,
               but without the intent required for criminal responsibility under § 39-
               11-402(2), the person knowingly furnishes substantial assistance in
               the commission of the felony.

        Our supreme court explained, in State v. Allen, 69 S.W.3d 181 (Tenn. 2002), that reversible
error occurred from the jury’s not having been instructed as to facilitation because, based on the
evidence, the jury reasonably could have determined that the defendant was guilty of this offense:

               The proof in this case showed that Allen stood silently in the doorway
               of the market as his accomplice robbed the clerk at gunpoint. Allen
               displayed no weapon and took no property from the victim. There
               was no evidence that he received any proceeds of the robbery. The
               jury could have reasonably concluded that Allen did not share the
               intent of his accomplice even though he knowingly furnished
               substantial assistance by blocking the door. Furthermore, consistent
               with the general rule, the proof of aggravated robbery in this case
               necessarily proved robbery. Therefore, evidence existed that
               reasonable minds could accept as to the offense of facilitation of
               robbery.

Id. at 188 (footnote omitted).

       Likewise, in State v. Richmond, 90 S.W.3d 648 (Tenn. 2002), the court explained that
overwhelming proof as to the greater offense does not obviate the necessity to instruct as to lesser
offenses:

               [O]verwhelming evidence established defendant Richmond's
               participation in the robbery of Mose Cuxart and attempted robbery of
               Charles Stephen Earls. Likewise, evidence was overwhelming and
               uncontroverted that deadly weapons were involved. In proving the
               greater offenses, the State necessarily proved the lesser-included
               offenses. Therefore, a jury could have convicted the defendant of the
               lesser-included offenses of robbery and attempted robbery. As such,
               it was error for the trial court not to charge the lesser-included
               offenses of robbery and attempted robbery.


                                                -12-
Id. at 662-63.

       However, the court additionally explained that the fact that lesser offenses should have been
charged, but were not, does not necessarily require a reversal of the conviction:

                 [O]ur determination whether this error was harmless beyond a
                 reasonable doubt hinges upon what a reasonable jury would have
                 done in light of the evidence produced at trial. We hold that no
                 reasonable jury would have convicted the defendant on the
                 lesser-included offenses of robbery and attempted robbery instead of
                 the charged offenses due to the uncontroverted and overwhelming
                 evidence establishing the use of deadly weapons and his direct
                 participation in the offenses. Any error was harmless beyond a
                 reasonable doubt.

Id. at 663.

       To assess the petitioner’s claim in the present appeal that his conviction should be reversed
because the court did not instruct as to facilitation and appellate counsel did not raise this as an issue
on appeal, we will review the evidence.

         Christopher Michael Darnell, the victim’s next-door neighbor at the apartment complex,
testified that on October 24, 1997, the day of the crime, he heard a knock on the door, looked
outside, and saw two men first standing in front of the victim’s apartment and then going inside. He
continued, “And after that, all chaos broke loose. There was yelling and all types of commotion and
fighting.” Darnell described what happened next:

                         A lot of fighting, stuff breaking, a lot of throwing around,
                 yelling. [The victim] was almost thrown – thrown through my wall,
                 numerous times. All through this, I just keep hearing, “Where’s my
                 money? I want my money.”

        Darnell said that the demands for money were “[f]rom the other individuals,” not from the
victim. He estimated that the commotion lasted for “approximately an hour.” When he and his wife
heard someone say, “I’m going to shoot you,” they got into a corner behind some furniture. He said
that “after all the fighting and stuff got done,” the two men stayed in the victim’s apartment for
fifteen to twenty minutes. Heather Darnell testified that she heard the men “asking where their
money was, and that if he didn’t give them their money, they were going to shoot him.”

       Vickie Miller, another of the victim’s neighbors, said that, on the evening of the crime, she
had been in her apartment with her sister and grandchild. About 9:30 p.m., she saw two African-
American men in the yard in front of her apartment. The men then went up the stairs to two
apartments, one of which was the victim’s. Her mother, who lived in the apartment just below that


                                                  -13-
of the victim, called and asked her to come. While at her mother’s apartment, Miller “heard [the
victim] screaming for his life,” saying, “Oh, God, help me. They’re killing me. Oh, God, help me.”
She arrived at her mother’s apartment at 9:55 p.m. and “kept calling and calling and calling” 9-1-1,
but was told “they didn’t have enough officers” to respond. At 10:15 p.m., she called the victim’s
mother at her job and “told her she needed to come home, because someone was killing [the
victim].” It took the victim’s mother about ten minutes to arrive. The apartment manager began
beating on the door of the victim’s apartment, and the same two men left the apartment. Miller
described what she saw as she entered the apartment with the victim’s mother:

               The living room was all tore up, things turned over, just tore down,
               just demolished. Blood was everywhere. I know that. And we went
               into the – which would be the bedroom, but he had made that the
               living room. And [the victim] was laying [sic] on the floor, against
               the wall. And he – the only thing he told me was cover me up before
               I go into a coma.

        Francis Hampton, the victim’s mother, testified that after the two men had left, she went to
the victim’s apartment, entered through the unlocked front door, and found him on the floor in the
back bedroom “in like a fetal position.” The victim was very bloody and spoke to her, “Momma,
I didn’t owe them any money. I didn’t owe them any money.”

        Officer George Bouton, of the Metro Police Department, said that he had been called to the
victim’s apartment to take photographs the evening of October 24, 1997, arriving at approximately
11:15 p.m. He described the apartment as being “in disarray. It appeared that there had been some
type of struggle that had occurred there.” He said “there was blood from the front door, pretty much
throughout the apartment.” We have reviewed the photographs of the apartment, which were trial
exhibits, and they show smashed furniture, broken glass, blood smeared on the walls, and blood on
the carpet and sofa.

        Dr. John E. Gerber, a forensic pathologist, testified as to the autopsy results of the victim.
He said the victim had died as the result of what were estimated to be forty-one stab wounds to the
head, torso, arms, and legs. Of these, the wounds to the right lateral chest, the mid-portion of the
back, and the left lateral back would have been fatal. The victim had incision wounds in addition
to the forty-one stab wounds. Dr. Gerber said, “It’s very likely more than one weapon was used.”

        By the petitioner’s view of the evidence, a facilitation instruction was required because “the
evidence adduced by the State would suggest only that [the petitioner] either drove, or loaned the
vehicle to, [the petitioner’s] brother.” Additionally, he asserts that “[t]he State’s sole argument
against [the petitioner] was that [he] was there.” We respectfully disagree with the petitioner’s view
of the evidence presented at trial. In brief, the State’s proof was that the petitioner and his




                                                -14-
codefendant both entered and left the victim’s apartment together.3 During the approximately thirty-
minute period that they were inside, the victim was stabbed at least forty-one times, very likely with
two weapons, and sustained additional uncounted incision wounds. Three of the stab wounds were
fatal. The victim was thrown against the walls of his apartment and was shouting, “They’re killing
me.” Witnesses heard the attackers asking “where their money was” and telling the victim “they
were going to shoot him.” Given the length of time and the savagery of the attack throughout the
victim’s apartment and the shouts of the victim and his assailants showing that the victim was being
attacked by more than one person, we conclude that, based upon the proof presented at trial, a
reasonable jury would not have determined that the petitioner was guilty merely of facilitation. In
fact, the evidence was overwhelming that the petitioner actively participated in the lengthy and brutal
attack on the victim. Accordingly, even if the trial court should have instructed as to facilitation, as
the petitioner contends, the error was harmless and, as such, does not entitle him to post-conviction
relief. Likewise, as to the variant of this claim, that appellate counsel was ineffective for not raising
on appeal that the jury should have been instructed on facilitation, the record supports the
determination of the post-conviction court that the petitioner failed to prove that he was prejudiced
as a result. Thus, as to his claims that both the trial court and counsel erred as to a facilitation
instruction not being given, we conclude that the petitioner has failed to show that he is entitled to
post-conviction relief.

                                                 CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition.


                                                       ________________________________________
                                                       ALAN E. GLENN, JUDGE




         3
         As we have stated, the petitioner asserted an alibi defense at trial, denying that he had b een at the victim’s
apartment at the time of the attack.

                                                         -15-
