             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                                MARCH 1997 SESSION
                                                        FILED
                                                       September 23, 1997
JOHNNY MOFFITT,                       )
                                      )                 Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
                   APPELLANT,         )
                                      )    No. 02-C-01-9609-CC-00304
                                      )
                                      )    Henderson County
v.                                    )
                                      )    Julian P. Guinn, Judge,
                                      )    Sitting by Designation
                                      )
                                      )    (Post-Conviction Relief)
STATE OF TENNESSEE,                   )
                                      )
                     APPELLEE,        )



FOR THE APPELLANT:                         FOR THE APPELLEE:

Lloyd R. Tatum                             John Knox Walkup
Attorney at Law                            Attorney General & Reporter
124 East Main Street                       500 Charlotte Avenue
Henderson, TN 38340                        Nashville, TN 37243-0497

                                           Deborah A. Tullis
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           James G. Woodall
                                           District Attorney General
                                           P.O. Box 2825
                                           Jackson, TN 38302-2825

                                           Alfred L. Earls
                                           Assistant District Attorney General
                                           P.O. Box 2825
                                           Jackson, TN 38302-2825




OPINION FILED:____________________________


REVERSED AND REMANDED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Johnny Moffitt (petitioner), appeals as of right from a judgment of the

trial court dismissing his suit for post-conviction relief following an evidentiary hearing. The

trial court found the grounds asserted by the petitioner had been waived because he failed

to include the grounds in a prior suit for a writ of habeas corpus in the Federal District Court

for the Western District of Tennessee, which was determined upon the merits. The court

further found that if the suit was considered on the merits of the grounds asserted, the

petitioner would not be entitled to relief from his conviction. In this Court, the petitioner

contends the failure of the trial court to instruct on the defense of alibi constituted a denial

of federal and state due process and was the result of ineffective assistance of counsel.

He further contends he has neither previously litigated nor waived this issue. After a

thorough review of the record, the briefs submitted by the parties, and the law governing

the issues presented for review, it is the opinion of this Court the judgment of the trial court

should be reversed and this cause remanded to the trial court for the reasons hereinafter

set forth in this opinion.

       The petitioner was tried and convicted of murder in the first degree by use of a

deadly weapon and shooting into an occupied dwelling. He was sentenced to life plus five

(5) years for first degree murder, and he was sentenced to six (6) years for shooting into

the dwelling. This Court affirmed his convictions and sentences. State v. Johnny Moffitt,

Henderson County No. 7 (Tenn. Crim. App., Jackson, December 5, 1990), per. app. denied

(Tenn., March 4, 1991). On April 11, 1991, the petitioner sought a writ of habeas corpus

in the United States District Court for the Western District of Tennessee. The petitioner

raised the issue of alibi in the petition. He did not raise the question of whether his denial

of an instruction constituted a denial of due process or whether it resulted from the

ineffective assistance of trial counsel. On December 2, 1992, the magistrate filed his

report recommending the petitioner’s suit be dismissed based upon the merits. The district

court judge adopted the magistrate’s report and dismissed the petition on February 17,

1993, after thorough consideration of the grounds raised in the petition. The present post-

conviction suit was filed March 4, 1993.


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       The evidence presented by the State of Tennessee during the trial of this case was

entirely circumstantial. The transcript of the trial proceedings reveals the petitioner had

threatened to kill the victim. Moreover, there was a history of discord between the

petitioner, his former wife, and the family. The victim was the brother of the petitioner’s

former wife.

       The 9mm shell casing found in the petitioner’s yard and the shell casings found at

the situs of the crime were fired from the same weapon. An officer had previously been

to the petitioner’s residence. He saw a 9mm pistol inside the residence. Another officer

saw the petitioner purchase 9mm cartridges in a Jackson, Tennessee gun store prior to the

murder. The victim died from multiple gunshot wounds caused by 9mm projectiles.

       A search of the defendant’s residence pursuant to a search warrant did not reveal

a 9mm pistol or ammunition for a 9mm pistol. Later, the petitioner gave the officers a 9mm

pistol with empty cartridges for examination by the state.

       A state’s witness testified she saw a male enter the victim’s residence just before

the shooting resulting in the death of the victim. The man had an orange piece of clothing

over his arm. However, the description of the person she saw compared to the defendant

was hotly disputed. In this Court’s previous decision, this Court said:


               There was a dispute as to whether or not her description fit the
               defendant, and this witness in fact testified on cross-
               examination that the characteristics of the person whom she
               observed on the day of the murder did not match or resemble
               the defendant’s. This witness further testified that she heard
               what she thought were several gunshots and then shortly
               thereafter saw the same individual she had described leave in
               his car.

State v. Johnny Moffitt, Henderson County No. 7, slip op. at 4-5.

       A state’s witness, Richard Baxter, gave evidence which would support a defense of

alibi. Baxter testified he was with the petitioner from 6:45 a.m. until “around lunchtime” on

the date of the murder. He claimed he went to the petitioner’s residence where he and the

petitioner ate breakfast, talked, and drank alcoholic beverages before parting company at

approximately 1:00 p.m. Baxter subsequently had a confrontation with John Threadgill,

who was operating a backhoe. The backhoe was blocking the roadway. Threadgill and

Baxter had a heated argument regarding the location of the backhoe. This argument led



                                              2
to a fight. Threadgill estimated the confrontation and subsequent fight occurred between

1:00 p.m. and 2:00 p.m.

       The medical examiner testified as a prosecution witness. He opined the victim died

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

p.m.

       The trial court was prepared to instruct the jury on the defense of alibi. The State

of Tennessee objected to this instruction being included in the charge. The assistant

district attorney general argued the defense of alibi had not been fairly raised by the

evidence. Defense counsel agreed the alibi defense had not been fairly raised by the

evidence. The trial court agreed with counsel. The court did not instruct the jury on the

defense of alibi.

       In order for the petitioner to be granted relief on grounds of ineffective counsel, he

is required to establish by a preponderance of the evidence the advice given or the

services rendered were not within the range of competence demanded of attorneys in

criminal cases and that, but for counsel’s deficient performance, the result of the trial would

have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). In Strickland, the standard of

review on the issue of assistance of counsel was stated as follows:


              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. Unless a defendant makes
              both showings, it cannot be said that the conviction or . . .
              sentence resulted from a breakdown in the adversary process
              that renders the result unreliable.


466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To establish prejudice, any failure

in the performance of counsel “must be significant, but it does not necessarily follow that

the trial would have otherwise resulted in an acquittal.” State v. Zimmerman, 823 S.W.2d

220, 224 (Tenn. Crim. App. 1991).

       This Court is of the opinion the record establishes that the petitioner was denied his



                                              3
constitutional right to the effective assistance of counsel by counsel’s statement an alibi

defense had not been fairly raised by the evidence. The evidence fairly raised the issue

of alibi, and defense counsel should have insisted that the trial court instruct the jury on the

defense of alibi. This Court is of the opinion this case should be remanded to determine

whether the petitioner was prejudiced within the meaning of Strickland v. Washington, 466

U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.




                                    _____________________________________________
                                          JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
        GARY R. WADE, JUDGE



______________________________________
       CURWOOD WITT, JUDGE




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