         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                      Assigned on Briefs August 8, 2000 (at Jackson)

              DONNIE WHEELER, et al. v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for DeKalb County
                            No. 7679-F    Leon Burns, Jr., Judge



                     No. M1999-02453-CCA-R3-PC - Filed March 22, 2001


The Petitioners filed pro-se petitions for post-conviction relief on September 25, 1997, in accordance
with the Post Conviction Relief Act. Tenn. Code Ann. § 40-30-101. Amended petitions were
subsequently filed by court appointed counsel on November 14, 1997. The Petitioners’ petitions
were later dismissed and this appeal followed. In this appeal, the Petitioners set forth several
grounds upon which they claim that post-conviction relief should have been granted. Specifically,
the Petitioners allege ineffective assistance of counsel, claiming that counsel: failed to file a motion
for judgment of acquittal; failed to appeal the judgment of conviction for second degree murder;
failed to dismiss two jurors who were alleged to be biased against the Petitioners, which resulted in
a denial of their right to a fair and impartial jury; failed to interview and cross-examine a witness of
the State’s; and failed to file a motion to suppress photographs that were entered into evidence.
Petitioner Donnie Wheeler also contends that post-conviction relief should have been granted
because counsel failed to request an instruction on the lesser-included offense of criminal
responsibility for the facilitation of a felony, and because the trial court failed to charge the jury with
the same lesser-included offense. After careful examination of the issues set forth herein, we affirm
the post-conviction court’s denial of post-conviction relief to the Petitioners.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court. DAVID G. HAYES, J., concurred by
separate opinion. JAMES CURWOOD WITT, JR., J., concurred by separate opinion.

Ricky L. Jenkins, Sparta, Tennessee, for the appellant, Donnie Wheeler.

Cindy A. Howell, Sparta, Tennessee, for the appellant, Lonnie Wheeler.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney
General; G. Robert Radford, District Attorney General; and William M. Locke, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                             OPINION


       The Petitioners, Donnie and Lonnie Wheeler, were convicted by a DeKalb County jury of
second degree murder, a Class A felony. Tenn. Code Ann. § 39-13-210. In a negotiated sentencing
agreement, both Petitioners accepted seventeen-year sentences and waived their rights to appeal or
challenge their convictions and sentences. The Petitioners subsequently filed petitions for post-
conviction relief, but after a hearing the petitions were dismissed. This appeal followed.

                                              FACTS

        Petitioner Donnie Wheeler was in a relationship with Crystal Wheeler. After the relationship
ended, Crystal Wheeler began to date the victim, Dale Bain. On the night the victim was killed,
Petitioner Donnie Wheeler had been involved in a confrontation with the victim at Crystal Wheeler’s
home. During the confrontation, Petitioner Donnie Wheeler went to a truck where Petitioner Lonnie
Wheeler was waiting, took a shotgun from the truck, and pointed it at both the victim and Crystal
Wheeler’s father. Crystal Wheeler then stepped in front of the shotgun and told Petitioner Donnie
Wheeler that if anyone was going to be shot she was going to be first. Shortly thereafter, both
Petitioners left. After the Petitioners left Crystal Wheeler’s home, Crystal Wheeler left with her
father to go to the police station to file a complaint against Petitioner Donnie Wheeler.

        Later the same night, Crystal Wheeler and the victim were driving back to Crystal Wheeler’s
house when they saw the Petitioners in the same truck they had been in earlier that evening. The
Petitioners then began to follow Crystal Wheeler and the victim. After following Crystal Wheeler
and the victim for some time, Petitioner Donnie Wheeler threw a beer bottle at the car being driven
by Crystal Wheeler. Immediately thereafter, Petitioner Lonnie Wheeler managed to pull his truck
in front of Crystal Wheeler’s vehicle, forcing her to stop. Once the two vehicles stopped, a second
confrontation broke out between Petitioner Donnie Wheeler and the victim.

       While Petitioner Donnie Wheeler and the victim were arguing, Petitioner Lonnie Wheeler
stepped to the back of the truck he was driving, pulled out a shotgun, walked back over to the victim,
and pointed the shotgun at him. The victim grabbed the barrel of the shotgun, which then
discharged. The victim was killed and the Petitioners fled the scene.

       The Petitioners were convicted by a DeKalb County jury of second degree murder, a Class
A felony. Tenn. Code Ann. § 39-13-210. In a negotiated sentencing agreement, both Petitioners
accepted seventeen-year sentences and waived their rights to appeal or challenge their convictions
and sentences. The Petitioners subsequently filed pro-se petitions for post-conviction relief on
September 25, 1997, in accordance with the Post-Conviction Relief Act. Tenn Code Ann. § 40-30-
101. Amended petitions were later filed by court appointed counsel on November 14, 1997. On
June 30, 1999, after a hearing, the post-conviction court dismissed the Petitioners’ petitions. This
appeal followed.



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                                             ANALYSIS

                                         Standard of Review

        This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed.2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State,
789 S.W.2d 898, 899 (Tenn. 1990).

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S.Ct. at 2065; State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). Therefore, in order to prove a
deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below
an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d
at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

        In reviewing counsel's conduct, a "fair assessment . . . 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. The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate preparation.
Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

         Further, the trial judge's findings of fact on post-conviction hearings are conclusive on appeal
unless the evidence preponderates otherwise. Burns, 6 S.W.3d at 461. The trial court’s findings of
fact are afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings
unless the evidence in the record preponderates against those findings. Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court
may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn by the trial
judge. Henley, 960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App.
1996). Questions concerning the credibility of witnesses and the weight and value to be given to
their testimony are resolved by the trial court, not this Court. Burns, 6 S.W.3d at 461. The burden
of establishing that the evidence preponderates otherwise is on petitioner. Henley, 960 S.W.2d at
579; Black, 794 S.W.2d at 755.




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                                          Issues Presented

                                                  1.

       The Petitioners first contend that trial counsel was ineffective since counsel failed to file a
motion for judgment of acquittal. We disagree.

        One witness testified that on the night the victim was killed, Petitioner Donnie Wheeler and
the victim had been engaged in an argument. Further testimony was given that during the argument
Petitioner Donnie Wheeler retrieved a shotgun from his brother’s truck and pointed it at the victim.
The same witness also testified that Petitioner Donnie Wheeler engaged the victim in a second
confrontation later the same night, after forcing her and the victim to stop the car they were driving.
The witness testified that while Petitioner Donnie Wheeler was arguing with the victim, Petitioner
Lonnie Wheeler pulled a shotgun out of the back of his truck, approached the victim, pointed the
shotgun at the victim at close range, and as the victim grabbed the barrel, the shotgun went off.

         A second witness also testified about the events surrounding the victims’ death. The witness
testified that he was at the home of his daughter, Crystal Wheeler, on the night the victim was killed.
The witness further testified that the victim and Petitioner Donnie Wheeler had been in an argument
on the night the victim was killed, and that before Petitioner Donnie Wheeler left Crystal Wheeler’s
home, Petitioner Donnie Wheeler pulled a shotgun and pointed it at the victim, telling the victim to
“come outside and get some of this,” referring to the shotgun he had pulled from behind his back.

        Based on the testimony that was given by witnesses against the Petitioners, we find that any
motions by counsel seeking a motion for judgment of acquittal would have been denied. Thus, the
Petitioners have not shown any prejudice. We find no merit in this contention.

                                                  2.

        The Petitioners also contend that trial counsel was ineffective for failing to appeal the
judgment of conviction for second degree murder. Our review of the record shows that both
Petitioners entered into negotiations after the jury verdict, whereby each Petitioner received a
seventeen-year sentence and waived his right to appeal his conviction and sentence. The record also
shows that during the sentencing hearing both Petitioners were questioned about the rights they were
giving up, and that both Petitioners gave up these rights knowingly and voluntarily. Further, both
Petitioners believed that accepting the sentence was in their best interests and that their counsel had
done a good job. We find no problems with the Petitioners’ voluntary waiver of their right to appeal
their convictions. Having agreed to voluntarily waive their rights to appeal their convictions and
sentences, the Petitioners’ trial counsel was under no duty to perfect a direct appeal. This issue is
without merit.



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                                                   3.

         The Petitioners next contend that trial counsel was ineffective because counsel failed to
dismiss two jurors by preemptive challenges. The Petitioners contend that the jurors had not
truthfully answered counsel’s questions during voir dire and that they knew the Petitioners. From
this the Petitioners contend that they did not receive a fair and impartial jury because the two jurors
were alleged to be biased against the Petitioners. Both jurors were called to testify at the post-
conviction hearing.

        The first juror who was alleged to have known Petitioner Donnie Wheeler, testified, however,
that he was not acquainted with Petitioner Donnie Wheeler. The juror testified that he had “seen [the
Petitioners] around, but [he did not] know them.” Further, the juror testified that had not had any
problems with the Petitioners that he could remember. The juror testified that he was not biased
against the Petitioners and that he did not do anything to hurt their case. Based upon this testimony,
the post-conviction court found that there was no reasonable showing that “[the juror] had done
anything improper in the deliberative process of the jury or influenced the jury in any way
improperly.” We agree.

         The second juror also testified that he did not know the Petitioners. The juror did testify,
however, that several years prior to the Petitioners’ trial he was helping his son load a truck onto a
trailer, and that Petitioner Lonnie Wheeler may have helped load the truck onto the trailer. The juror
testified, however, that he could not be certain that Petitioner Lonnie Wheeler was present that day.
The juror was certain, however, that this was the only time he had ever heard either of the
Petitioners’ names. The same juror also testified that he never had any problems with either of the
Petitioners; he did not remember ever telling his son to stay away from either Petitioner; was not
biased or prejudiced against either Petitioner; did not know the Petitioners when he was selected as
a juror in the case during voir dire; and that his verdict was based on the law given by the judge.

        Based upon the testimony given by the second juror at the post-conviction hearing, the court
found that the juror had not attempted to be deceptive during voir dire. The court stated that if the
juror did have a casual meeting with Petitioner Lonnie Wheeler, it was three or four years before the
trial and could have faded from his memory. The court further held that no showing had been made
that the juror had purposefully given a false response so that he could get on the jury. Again, we
agree with the post-conviction court and find no merit in the contention that either juror was
prejudiced or biased against the Petitioners. Further, this Court agrees with the post-conviction court
that the Petitioners were given a fair and impartial jury. This issue is without merit.

                                                   4.

         The Petitioners next contend that trial counsel was ineffective because they failed to
interview one of the State’s witnesses prior to trial and failed to cross-examine the same witness at
trial. A review of the record reveals that the post-conviction court failed to find that counsels’ failure
to interview the State’s witness prior to trial was prejudicial to the Petitioners’ case. Further, the


                                                   -5-
record has failed to yield evidence that preponderates against the findings of the post-conviction
court. The Petitioners have failed to carry the burden of establishing that counsels’ failure to
interview the State’s witness was prejudicial to their trial.



                                                  5.

         The Petitioners next contend that trial counsel was ineffective because they failed to cross-
examine one of the State’s witnesses. Counsel testified at the post-conviction hearing that the
statement by the State’s witness, that she had heard someone yell “yeehaw” as the Petitioners’ truck
left the scene, was the first time that anything of that nature was made known. Further, counsel also
testified that after hearing this testimony the decision was made not to cross-examine the witness
because they believed she was a credible witness and did not want to draw added attention to her
testimony. During the post conviction hearing a statement made by the witness to the police was
also introduced. The statement failed to indicate such a squeal from anyone in the fleeing vehicle.
In fact, the only thing the witness’s statement said was that she “heard a gun go off, ... [saw] a white
Chevrolet truck pulling off fast, and [that] there was another car in the road with an unknown girl
yelling for help.” As with the Petitioners’ contention that trial counsel was ineffective for failing to
interview the State’s witness prior to trial, the post-conviction court found that trial counsel was not
ineffective for failing to cross-examine the State’s witness. Based upon our review of the record,
we agree with the post-conviction court that it was not ineffective for counsel to refrain from cross-
examining the State’s witness. This issue is without merit.

                                                  6.

        The Petitioners next contend that trial counsel was ineffective for failing to cross-examine
a second State’s witness. The second witness that the Petitioners contend trial counsel should have
cross-examined was an officer who was working on the case. Counsel testified that the decision to
refrain from cross-examining the officer was a pre-trial decision that was made based upon
inconsistent statements the Petitioners had given to police. After hearing counsel’s testimony, the
post-conviction court found that even if counsel had cross-examined the officer it would not have
affected the outcome of the case.

        As we have set forth above, deference will be given to matters of strategy and tactical choices
that are informed and based upon adequate preparation. As the post-conviction court obviously
found, trial counsels’ decision not to cross-examine the officer who testified as a State’s witness was
a decision grounded in strategy and tactical decision. Further, the decision was one made after
preparation. We also pause to note that the Petitioners have failed to establish how counsels’ failure
to cross-examine this witness prejudiced their right to a fair trial. This issue is without merit.

                                                   7.



                                                  -6-
        The Petitioners next claim that trial counsel was ineffective for failing to file a motion to
suppress four photographs that were introduced into evidence at trial. The post-conviction court did
not find that counsel was ineffective for failing to object to these two photographs, and found that
two of the photographs were not so prejudicial that they would have influenced the jury. Both of
these first two photographs were of blood on the pavement.

         With regards to the other two photographs, both showing the victim’s body and the gun shot
wound, the post-conviction court also found that trial counsel was not ineffective for failing to object
to them. The post-conviction court found that even if the photographs had not been allowed into
evidence, the outcome would not have been any different – the Petitioners’ convictions would have
still resulted. Our review of the record supports this finding. This issue is without merit.

                                                   8.

        Petitioner Donnie Wheeler contends that trial counsel was ineffective for failing to request
a jury instruction on the lesser-included offense of facilitation of a felony and claims that he was
denied his right to a jury trial by failure of the trial court to charge the jury with the lesser-included
offense of facilitation of a felony. In State v. Burns, the Tennessee Supreme Court held that a trial
court must instruct a jury on all lesser-included offenses if the evidence introduced at trial is legally
sufficient to support a conviction for the lesser offense, whether or not a defendant requests such an
instruction. State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999). Thus, the language clearly establishes
that applicable lesser-included offenses must be charged to the jury by the trial court regardless of
requests made by counsel. As such, we are unable to conclude that trial counsel was ineffective by
failing to request a jury instruction on the lesser-included offense of facilitation of a felony.

        This Court will not address whether the Petitioner was denied a jury trial because of the trial
court’s failure to instruct on a lesser-included offense. The Petitioner, after a jury verdict, negotiated
with the State for an agreed sentence, thereby waiving his right to appeal his sentence, and waived
his right to appeal his conviction. Further, the issue of whether to instruct on a lesser-included
offense is waived after a jury verdict when the defendant has failed to assert that the waiver was not
knowingly and voluntarily entered. This is an issue that was waived by Petitioner Donnie Wheeler
when he waived his right to appeal, and when the Petitioner failed to assert that his waiver was not
knowingly and voluntarily entered. This issue is without merit.

                                           CONCLUSION

       The post-conviction court’s dismissal of the Petitioners’ petition for post-conviction relief
was correct.




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      ___________________________________
      JOHN EVERETT WILLIAMS, JUDGE




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