         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 10, 2002

       ANDRADE BRUCE WILLIAMS, JR. v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                          No. 95-C-2810    Seth Norman, Judge



                    No. M2002-00357-CCA-R3-PC - Filed October 2, 2002


Petitioner appeals the denial of his petition for post-conviction relief. He was originally convicted
of felony murder and attempted especially aggravated robbery and received an effective life sentence.
He now contends he received ineffective assistance of counsel at his jury trial. We conclude
otherwise and affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID G.
HAYES, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Andrade Bruce Williams, Jr.

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


                                            OPINION

        Petitioner was convicted by a jury in Davidson County of felony murder and attempted
especially aggravated robbery and received concurrent sentences of life imprisonment and ten years,
respectively. His convictions and sentences were affirmed on direct appeal. See State v. Andrade
Bruce Williams, Jr., C.C.A. No. 01C01-9803-CR-00104, 1999 Tenn. Crim. App. LEXIS 329 (Tenn.
Crim. App. Apr. 8, 1999, at Nashville), perm. to app. denied (Tenn. 1999). He timely sought post-
conviction relief, alleging ineffective assistance of trial counsel. The petition was denied;1 this
appeal followed.


                                                        FACTS

         We summarize the pertinent facts from our opinion in the direct appeal.

                             Around 9 p.m. on October 2, 1998 [sic],2 Tonya Wynn, a
                    resident of 6th Avenue North in Nashville, was "sitting [on the steps
                    of her residence] and waiting on the light company to come and cut
                    [her] lights back on." While awaiting the utility company's arrival, she
                    observed the appellant park a vehicle in front of her house. Ms. Wynn
                    was familiar with the appellant because he dated her cousin, Cynthia
                    Malone. When the appellant got out of the vehicle, he was carrying
                    a ski mask and a gun. She described the appellant's clothing as "a
                    black khaki shirt and some black khaki pants." The appellant walked
                    around the corner out of her sight into a vacant lot toward the 7th
                    Avenue Market. Immediately thereafter, Ms. Wynn heard gunfire. A
                    few minutes later she saw the appellant return to the vehicle and
                    leave. Ms. Wynn recorded the license plate number and furnished it
                    to the police

                             Officer John Batty of the Nashville Metro Police Department
                    along with his partner Officer Pat Gibson arrived at the scene to find
                    Darel Douglas lying "semi-unconscious" in the doorway of the
                    market. The victim told Officer Gibson that "he was near the phone
                    booth . . . and somebody approached him and told him to give him the
                    f///--- money. When he told him he didn't have any [money], then he
                    was shot." The victim stated to Officer Gibson that he did not
                    recognize his assailant who was wearing a ski mask. The victim was
                    acquainted with Officer Gibson and asked the officer to accompany

         1
           After petitioner had testified at length on cross-examination at the post-conviction hearing, the prosecuting
attorney asked him why he told the investigator in his statement that he wanted the victim's money, which was contrary
to his post-conviction testim ony. Petitioner claimed he did not und erstand the pro secuting attorney's question. The post-
conviction court concluded he understood the question and was refusing to answer. The post-conviction court at that
time abruptly announced, "The petition is denied." A pane l of this court remanded this matter for findings of fact and
conclusions of law. See Andrade Bruce W illiams v. State, No. M 2001-00 509-CC A-R3-PC (T enn. Crim. App. Dec. 17,
2001) (order). The post-conviction court then filed findings and conclusions addressing the merits of petitioner's claims.
The abrupt termination of the post-conviction proceeding is not an issue in this appeal. Although we do not condone
or agree with the abrupt termination, there is no indication petitioner intended to present further testimony. Thus, we
are unable to conc lude p etitioner was prejud iced b y this action.

         2
             The correct year was 1995, not 1998.

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him to the hospital. The victim died at 1 p.m. the following day. The
autopsy report established that the victim was shot three times with
bullet wounds to the abdomen, left hip and back.

       The investigation developed the appellant as a suspect in the
shooting. On October 3, 1998 [sic], the detective spoke with the
appellant at his mother's home in Nashville. The following day, the
appellant voluntarily came to the police station. At the station, he was
advised of his Fifth Amendment rights which he acknowledged by
signing a waiver of rights form. The appellant's first statement was
recorded on audiotape and played for the jury.

         In his first statement, the appellant explained that Tony
Fitzgerald had robbed Darel Douglas and that he only drove the
getaway car. The police searched for a Mr. Fitzgerald but could not
locate anyone by that name. Through their investigation, the officers
concluded that the robbery and murder involved only one assailant.
The officers again spoke with the appellant on October 5, 1998 [sic],
at his place of employment. The officers explained to the appellant
that Tony Fitzgerald did not exist and that they wanted to conduct a
further interview. The appellant admitted that Tony Fitzgerald was
fictitious.

       Again, on October 5, the appellant was Mirandized and
signed a waiver of rights form. He stated that on October 2, he
borrowed a vehicle from a friend and went to the 7th Avenue Market.
Upon this occasion, the victim was not present. However, the second
time Douglas was present and the appellant admitted to holding the
gun on the victim and telling him to "set it [money] out." The victim
threw the money down. The appellant stated that he only wanted to
shoot him in the leg because he "knew" the victim carried a gun;
however, his hand "jumped" and he shot the victim in the stomach.
Then, he shot him three more times. The appellant related that he was
scared of Douglas.

        The appellant testified that one week prior to the shooting, he
and Douglas had argued at a car wash. Douglas had placed a gun to
his head and threatened to kill him if he returned to "Salem Town."
The appellant did not report this incident to the police because he was
afraid of retaliation from Douglas. Because of this incident, the
appellant decided that he wanted to "scare him [Douglas] back. . . .
All my plans was to do was just rob him, just scare, not to shoot or
kill him . . ."


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                        On cross-examination, the appellant admitted that he began
                his preparations for the robbery five hours in advance by securing a
                vehicle, obtaining a gun, and cutting holes in the ski mask. He
                admitted that he shot the victim three times including once in the
                back. The appellant stated that he was only trying to shoot Douglas
                before Douglas shot him. In his statements to the police, the
                appellant never said that he saw a gun. However, at trial, he claimed
                that Douglas had a gun. No weapon was found by the police at the
                crime scene. The appellant admitted that after he had shot Douglas
                twice, Douglas began running away. The appellant then shot him in
                the back. "I was just getting him back for what he did to me."


                         INEFFECTIVE ASSISTANCE OF COUNSEL

         Petitioner contends he was deprived of effective assistance of counsel due to trial counsel's
failure to do the following: (1) seek dismissal of the defective indictment; (2) make an offer of proof
regarding evidence of the victim's violent reputation; (3) object to prosecutorial misconduct during
final argument; and (4) object to the jury charge.

         For a petitioner to successfully overturn a conviction based on ineffective assistance of
counsel, the petitioner must first establish that the services rendered or the advice given was below
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled
to relief. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The petitioner is not entitled to the
benefit of hindsight; the petitioner may not second-guess a reasonably based trial strategy; and the
petitioner may not criticize a sound, but unsuccessful, tactical decision made after adequate
preparation for the case. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); see Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        The petitioner bears the burden of proving his allegations by clear and convincing evidence.
Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the post-conviction court are
conclusive and will not be disturbed unless the evidence contained in the record preponderates
against them. See Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).




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                                            ANALYSIS

A. Defective Indictment

        Petitioner contends trial counsel was ineffective by not seeking dismissal of the indictment
due to its omission of the word "unlawful" in the felony murder count. The indictment alleged the
petitioner "on the third day of October, 1995... and before the finding of this indictment, recklessly
did kill Darel Rodriguez Douglas, during the perpetration of or attempt to perpetrate robbery, in
violation of Tennessee Code Annotated § 39-13-202, and against the peace and dignity of the State
of Tennessee." The omission of the word "unlawful" was not fatal to the indictment. The reference
to the felony murder statute gave the petitioner sufficient notice of the charge. See State v. Carter,
988 S.W.2d 145, 149 (Tenn. 1999). Trial counsel was not deficient in failing to seek dismissal on
this basis, nor was petitioner prejudiced.

        Petitioner next contends trial counsel was ineffective in not seeking dismissal of the
indictment based upon its unnecessary allegation that he "recklessly killed the victim," whereas the
mens rea of "recklessly" was no longer a requirement of the offense of felony murder. See Tenn.
Code Ann. § 39-13-202(a)(2) (Supp. 1995). Trial counsel explained that this simply added another
element that the state had to prove; therefore, he saw no reason to seek dismissal of the indictment.
Although the trial court was not required to charge the reckless mens rea, it did so, thereby creating
an additional element the state had to prove. The inclusion of the word "recklessly" in the indictment
was mere surplusage. State v. Kenneth A. Adams and Jeremiah A. Leavy, C.C.A. No. 02C01-9812-
CC-00377, 1999 Tenn. Crim. App. LEXIS 1296, at *12 (Tenn. Crim. App. Dec. 21, 1999, at
Jackson), perm. to app. denied (Tenn. 2000); see also State v. Hopper, 695 S.W.2d 530, 535 (Tenn.
Crim. App. 1985) (holding that allegation of the element of "deliberation" in a felony murder
indictment was mere surplusage; thus, the state was not required to prove this allegation). The
inclusion of the reckless mens rea in the indictment was to the petitioner's advantage. Trial counsel
was not deficient, nor was petitioner prejudiced.

B. Reputation Evidence

        Petitioner contends trial counsel was ineffective in failing to make an offer of proof relating
to the victim's violent reputation. On direct appeal, this court concluded the issue of reputation
evidence was waived due to trial counsel's failure to make an offer of proof. Andrade Bruce
Williams, Jr., 1999 Tenn. Crim. App. LEXIS 329, at *12. However, we also concluded the victim's
reputation was irrelevant to any issue in the case. Id. at *13. Thus, had an offer of proof of the
victim's violent reputation been made, this court would still have affirmed the trial court's rejection
of such evidence. Petitioner was not prejudiced by trial counsel's failure to make an offer of proof.

C. Prosecutorial Misconduct

       Petitioner contends the prosecuting attorney in her final argument improperly interjected her
personal opinions and her own definition of "reckless," and trial counsel failed to object or raise


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these issues on direct appeal. During final argument, the prosecuting attorney stated the defendant
preselected the victim, which she found "very frightening and very chilling." With regard to
petitioner's testimony that he did not intend to kill the victim, she stated, "I don't believe that."
Finally, the prosecuting attorney stated that "if firing a gun into a human body three times is not
reckless, then I don't know the definition of the term." The post-conviction court concluded these
remarks were, at most, harmless.

        The prosecuting attorney's expression of her personal opinion that she did not believe the
petitioner's testimony was clearly improper. See Tenn. Sup. Ct. R. 8, Code of Professional
Responsibility, DR 7-106(C)(4). The remaining remarks present a closer question. Nevertheless,
we are confident that none of the remarks inured to the prejudice of the petitioner. In short, had there
been objections and a consideration of this issue on direct appeal, petitioner would not have been
successful in securing a new trial. See State v. Middlebrooks, 995 S.W.2d 550, 559 (Tenn. 1999).
Accordingly, petitioner has not established prejudice.

D. Jury Instructions

         Finally, petitioner argues the jury instructions erroneously required the state to prove the
mens rea of "reckless" for felony murder. He contends the jury was misled by this instruction, and
trial counsel should have objected. As previously stated, the instructions requiring the state to prove
the unnecessary mens rea of "reckless" was to petitioner's advantage. Petitioner has not established
any deficiency by trial counsel nor prejudice.


                                          CONCLUSION

        Based upon our review of the record, we are unable to conclude the petitioner received
ineffective assistance of counsel. Accordingly, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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