        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                       NOVEMB ER SESSION, 1997         December 30,1997

                                                    Cecil W. Crowson
FRANK E. ADAMS,                )                  Appellate Court Clerk
                                   C.C.A. NO. 01C01-9609-CR-00401
                               )
      Appe llant,              )
                               )
                               )   DAVIDSON COUNTY
VS.                            )
                               )   HON. J. RANDALL WYATT, JR.
STATE OF TENNESSEE,            )   JUDGE
                               )
      Appellee.                )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR.            JOHN KNOX WALKUP
Suite 1502 , Parkway T owers       Attorney General and Reporter
Nashville, TN 37219
                                   JANIS L. TURNER
                                   Assistant Attorney General
                                   425 5th Avenu e North
                                   Nashville, TN 37243

                                   VICTOR S. JOHNSON
                                   District Attorney General

                                   KATRIN MILLER
                                   Assistant District Attorney General
                                   Washington Square, Suite 500
                                   222 2n d Aven ue No rth
                                   Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

        The Petition er app eals th e trial court’s denial of h is petition for p ost-

conviction relief. He was convicted by a jury on February 14, 1991, of felony

murder and two counts of agg ravated ro bbery.           H e was s entenc ed to life

imprisonment for the count of felony m urder and ten (10) years for each count of

aggravated robbery, all to be served consecutively for an effective sentence of

life plus twenty (20) years. His motion for new trial was denied on March 15,

1991.    This C ourt affir med his con victions on O ctobe r 29, 19 92, an d his

application for appeal to our supreme court was denied on Jun e 28, 19 93. State

v. Adams, 859 S.W.2d 359 (Tenn. Crim. App. 1992), perm. to appeal denied

(Tenn. 1993). The Petitioner filed a pro se petition for post-conviction relief on

Octob er 21, 19 93.



        With the assistance of counsel, the Petitioner filed an amended petition on

May 31, 1995. In that petition, the Petitioner alleged that counsel at trial and on

appeal rendered ineffective assistance for the following reasons: (1) That trial

counsel failed to inves tigate the whereabouts of the murder weapon; (2) that trial

counsel failed to offer testimony regarding when the Petitioner was arrested; (3)

that trial couns el failed to meet regularly with the Petitioner and inform him about

pretrial investigations; (4) that trial counsel failed to impeach the co-defendant at

trial regarding his drug use. The trial court conducted an evidentiary hearing on

the petition on July 5, 199 5. The trial court den ied post-conviction relief in an

order containin g extens ive findings of fact filed on July 17, 1995. After a brief

hearing for addition al testimony from counsel, the trial court issued a



                                          -2-
supplemental order affirm ing its den ial of post-conviction relief which was entered

on July 27, 199 5. The P etitioner filed a notice of a ppeal o n May 1 3, 1996 . In this

appe al, the Petitioner argu es that (1) Trial cou nsel rendere d ineffective

assistance; and (2) that the trial court violated the Petitioner’s constitution al rights

by use o f an invalid jury instruction . We affirm the ju dgme nt of the trial co urt.



         As a threshold matter, the State argues that this appeal should be

dismissed because the Pe titioner did not timely file his notice of appeal. The

State cites Rule 4(a) of the Tennessee Rules of Appellate Procedure, which

requires that the notice of appeal pursuant to Rule 3 “shall be filed with and

received by the clerk of the court within 30 days after the date of entry of

judgm ent.”     The trial co urt issued its final order o n July 27, 1 995 and the

Petitioner filed his notice of appeal on May 13, 1996. However, Rule 4(a) also

provides that the filing of a notice of appeal “may be waived in the interes t of

justice.” Tenn. R. App. P. 4(a). While the failure to file the requisite notice of

appeal rests upon the appellant, we be lieve it is in the interest of justice that the

requirement be wa ived in th is case. See State v. Scales, 767 S.W.2d 157 (Tenn.

1989).



         In the Petitioner’s first issue, he argues that trial counsel rendered

ineffective assistan ce, thus vio lating his righ t to competent representation as

guaranteed by the Sixth Amen dme nt to the United States Cons titution. In this

appe al, he specifically argues that counsel failed to investigate various a spects

of his case adequately and that counsel failed to attack the credibility of the co-

defend ant in his ca se ade quately.




                                           -3-
       The Petitioner testified at the post-conviction hearing that coun sel failed to

investigate a witness w ho saw how the Petitioner w as arres ted as it relate d to a

suppression issue p rior to tria l. He stated that counsel only info rmed him th at his

statem ents would not be suppressed, but did not elaborate on his case. He

testified that counsel did not interview two of three witnesses who saw him being

arrested.    The Petitioner stated that co unsel told him th e witnesses w ere

irrelevant. The P etitioner said he met with counsel, Karl Dean, less than ten

times and m et with the investigator once. The Petitioner testified that counsel

provided him with the indictm ent, but did not provide information about the

suppression hearing or the motion for new trial. The Petitioner admitted that he

discu ssed the dire ction o f his cas e with c ouns el.



       The Petitioner stated that his first attorney was Ross Alderman, who le ft his

position. Mike Engle was then assigned to the Petitioner, who requested a

different attorney. Karl Dea n and Lau ra Dykes the n represented the Petitioner

through trial. The Petitioner testified that they did not inform him regarding the

evidence in his case. The Petitioner also stated that defense counsel allowed an

in-court identific ation o f him and that counsel did not explain why a pretrial lineup

had not bee n done .      He con tended that coun sel did no t adequ ately cross-

exam ine the witn ess reg arding th e identificatio n.



       The Petitioner stated that counsel did not effectively challenge inconsistent

testimony regard ing the details of the ro bberie s. He a lso tes tified tha t coun sel did

not investigate or impea ch the co -defend ant, Mr. Crowell’s, credibility by cross-

examining him about prior drug use. The Petition er state d that tria l coun sel did

not introduce diagrams of the scene of the crime.              He stated that counsel

                                            -4-
intended to investigate the scene but that he did not know if they did. He stated

that it would have been helpful if counsel prepared their own diagrams of the

scene. He stated tha t counsel neve r attempted to locate the gun used in the

offenses. He testified that the co-defendant was telling others while in jail that he

was going to put the blame on the Petitioner. The Petitioner stated that one

inmate testified. The Petitioner also testified that there was a problem with the

jury instructions regarding the reasonable doubt standard and that he did not

discu ss with coun sel the conte nts of th e mo tion for n ew trial.



       On cross-examination, the Petitioner stated that he did not remember

testifyin g at the sup press ion he aring a lthoug h doc ume nts pre sente d to him

indicated that he testified. He stated that he met with Ross Alderman twice, and

Mike Engle four times. He admitted that he met w ith all counsel who represented

him a total of seventeen to eighteen times, in addition to court appearances. He

agreed that counsel filed a number of motions on his be half. Th e Petitio ner did

not reques t that Mr. D ean be remov ed from his case . Couns el discus sed with the

Petitioner whether he sh ould te stify at trial. The Petitioner thought that counsel

shou ld have highlighted that fact that he was found with a substantial amount of

coins on his person, but that the money taken in the robbery was only bills and

no coins. He testified that counsel should have h ighligh ted the co-de fenda nt’s

drug use, a lthoug h it was the Sta te’s theory that the robberies were perpetrated

to obtain money for drugs. He stated that he told counsel to whom the gun used

in the robberies was sold, but that he did not attempt to contact that person

himse lf.




                                           -5-
       On redirect, the Petitioner testified that Jeffrey DeVasher, who represented

him on appeal, did not meet with him, nor did he raise sufficiency of the evidence

as an issue. Also, he felt that trial counsel did not follow up on finding the person

with the gun, nor did counsel adequ ately try to loca te a witness who heard the co-

defendant bragging about the crime.



       Karl Dean testified at the post-conviction hearing. He stated that he began

working in the Davidson County Public Defender’s office in 1983 and was elected

Public Defender in 1990. He estimated that he had been involved in about one

hundred criminal jury trials and that approximately half were homicide trials. Ms.

Dykes had been in the o ffice ap proxim ately three years when they represented

the Petitioner. He spen t approximate ly twenty-eight (28) hou rs preparing for the

Petition er’s trial. The investigator was thorough and attempted to interview all of

the State’s witnesses, succeeded with a few, and followed up with inmates in the

jail regarding the co-defendant’s statements.



       He attem pted to investig ate the locatio n of the murd er wea pon, b ut cou ld

not verify the Petitioner’s claim because he could not talk with the co -defend ant.

Also, the Petitioner’s knowledge of the murder weapon’s location was not

relevant to the issue of his state of mind which was the theory presented at trial

that he was not the shooter and unaware that a robbery was going to take place.

He filed numerous motions on behalf of the Petitioner and treated it as a major

trial. Mr. Dea n and M s. Dykes both went to the crime scene. He testified that the

Petitione r was pre sent an d that he te stified at the s uppres sion hea ring.




                                          -6-
      On cross-exam ination, Mr. Dean stated that they investigated and

interviewed Mr. Zimmerman, a convenience store employee who was present

during the robbery and cross-examined him regarding the facts of the case.

Defense couns el also interv iewed L isa Can trell, who wa s prese nt when th e

Petitioner was arre sted, but c ould no t recall wha t efforts they u ndertoo k to

interview her parents. Mr. Dean did not recall anything regard ing the Petition er’s

mother as a possible impeachment witness against a witness for the State. He

clarified that his office spent twenty-eight hours pretrial and over fourteen during

the trial on the Petitioner’s case. He noted that the Petitioner never complained

that defense counsel was not meeting with him enough. Mr. Dean was aw are

that the Petitioner and the co-defendant Crowell used drugs and that this issue

came out at trial. He had no correspondence from the Petitioner regarding any

complaints about his representation.



      The trial court conduc ted a brief supple mentary he aring to clarify Mr.

Dea n’s testimony regarding the number of trials with which he had been involved.

He testified that he had worked on twenty-seven homicide trials, but that the one-

hundred total overestimated the actual number of all trials.         He could no t,

however, say with certainty how many on which he had worked.



      In a post-co nviction pro ceedin g unde r the Act a pplicable to this case, the

petitioner must prove the allegations in the p etition by a preponderance of the

evidence. Davis v. S tate, 912 S.W .2d 689, (T enn. 19 95); Adkins v. State, 911

S.W.2d 334, 341 (Tenn. Crim. App. 1994).             In appellate review of post-

conviction proceedings, the trial court’s findings of fact are conclusive unless the

evidence in the record preponderates against the finding s. Coop er v. State , 849

                                        -7-
S.W.2d 744, 746 (Tenn . 1993); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn.

1990).



         The trial court denied the Petitioner’s petition for post-conviction relief in an

order containing extensive findings of fact. The trial court concluded that Mr.

Dean adeq uately in vestigated the location of the murder weapon when

considering the de fense ’s theo ry abo ut the P etitione r’s involv eme nt in the crime.

The trial court considered that the murder weapon was “not a critical element for

the petitioner’s defense.”         The trial court also addressed the Petitio ner’s

contention that defense c ounsel failed to inves tigate the case a dequately. Mr.

Dean testified that their investigator conducted a thorough investigation, and that

they explored the state ments m ade by the co -defendant and investigated the

crime scene.        The office spent twenty-eight hours or more on the case.

Regarding Mr. Dean’s lack of interest in the case, the trial court cited fifteen

motions made to the court on the Petitioner’s behalf. The trial court concluded

that the iss ue was without m erit.



         The trial court also noted that defense counsel met with the Petitioner

between ten and seventeen times, and on the day before the suppression

hearing and the motion for new trial. T he cou rt also noted that the Petitioner

never complained regarding the frequency of the meetings.



         The trial court also found that co unse l’s failure to interv iew Lis a Can trell’s

parents did not overcome the presumption that Mr. Dean’s decision was trial

strategy. The trial judge also noted that evidence refuted the claim that the

Petitioner was not present at the suppression hearing. Also, the court found that

                                             -8-
counsel legitimately did not introduce evidence of the c o-defe ndan t Crow ell’s

drug use beca use he felt there h ad been s ufficient testimony p resented by the

State. The co urt found the challe nge to the represe ntation on appea l to be

meritless. In its conclusion, the trial court found that Mr. Dean and Ms. Dykes

had significant trial experience and that they were well-prepared for the trial. As

a result, their representation was well within the necessary range of competence

for criminal defense attorneys.



       The Petitioner argues that the trial court erre d by den ying his pe tition. In

determining whether counsel provided effective assistance at trial, the court must

decide whether counsel’s performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn . 1975). T o succe ed on a claim tha t his coun sel was in effective at trial, a

petitioner bears the burden of showing that his counsel made errors so serious

that he was not functioning as counsel as gu arantee d unde r the Sixth

Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produ ce a re liable result. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S. 12 67 (1984); Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993); Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,

but for counsel’s unreasonable error, the fact finder would have h ad rea sona ble

doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable

probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).




                                          -9-
         When reviewing trial counsel’s actions, this court should n ot use the be nefit

of hindsight to second-guess trial strategy and criticize coun sel’s tactics. Hellard

v. State, 629 S .W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.



         After a care ful consideration of the record, we cannot conclude that the

evidence preponderates against the trial court’s determination that the Petitioner

received compe tent representa tion from the attorne ys involved in the preparation

and trying of his case . Indeed , the trial judge was in a fa r better po sition to assess

the credibility of the witnesses. Furthermore, as the trial court concluded, there

is not sufficient evidence that the decisions or lack of action complained of by the

Petitioner constitute d error. T herefore , we agre e that the tria l court properly

denied the petition.



         As his final issue in this appeal, the Petitioner contends that the instruction

submitted to the jury regarding reasonable doubt was constitutionally insufficient

and a violation of due proce ss. At th e outs et, we n ote tha t the Pe titioner d id not

address this issu e until th is appeal. Although he briefly alluded to the issue

during his testim ony at the post-conviction he aring, n either th e origin al pro se

petition nor the ame nded petition conta ined th is issue. Furthermore, the trial

court did no t addre ss the issue in its orde r nor ha s the P etitioner alleged any

reason why a wa iver would not app ly. See Tenn. Code Ann. § 40-30-206(g).

Howeve r, even if we were to address the issue, we would conclude that it had no

merit.




                                           -10-
       The Petitioner contends that the jury instruction that was issued misstates

the necessary stand ard of be yond a re asona ble dou bt.           W e note tha t the

Petitioner has not included the record containing the jury instructions, howe ver,

he allege s that the in struction s tated that:

       Rea sona ble doub t is that d oubt e ngen dered by an in vestiga tion of a ll
       the proof in the case and an inability, after such investigation, to let the
       mind rest easily as to the certainty of guilt. Re ason able doubt does not
       mean a captious, possible, or 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
       eleme nt of proo f necess ary to con stitute the o ffense.


       The Tennessee Supreme Court has recently affirmed and incorp orated in

its opinion excerpts of this Court’s opinion regarding the identical language for the

reaso nable doubt instruction and concluding that no due process violation

occurre d. State v. Bush, 942 S.W .2d 489 , 520-21 (Tenn . 1997); see also State

v. Sexton, 917 S.W .2d 263 (Tenn . Crim. A pp. 199 5); Pettyjohn v. State, 885

S.W.2d 364 (Tenn. Crim . App. 1994 ); Terry S hanno n Kime ry v. State, C.C.A. No.

03C01-9512-CC-00412, Greene C ounty (Tenn. Crim. App, Knoxville, Jan. 28,

1997), perm. to appeal denied (Tenn. 1997). There fore, w e con clude that this

issue is w ithout me rit.



       Accord ingly, we affirm the judgm ent of the tria l court.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                          -11-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




                             -12-
