        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                December 6, 2011 Session

                   YDALE BANKS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                       No. 96-06381    John T. Fowlkes, Judge


                No. W2010-01610-CCA-R3-PC - Filed March 27, 2012


The petitioner, Ydale Banks, appeals the denial of his petition for post-conviction relief from
his convictions for first degree felony murder, first degree premeditated murder, conspiracy
to commit first degree premeditated murder, especially aggravated burglary, facilitation of
especially aggravated robbery, three counts of especially aggravated kidnapping, and three
counts of aggravated assault. He argues that: (1) the post-conviction court erred in finding
that he was not prejudiced by the instructions submitted to the jury that contained the trial
court’s handwritten corrections; (2) the post-conviction court erred in determining that he
received the effective assistance of counsel at trial and on appeal; and (3) the post-conviction
court erred in not granting a new trial due to cumulative error. After review, we affirm the
denial of post-conviction relief.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
J EFFREY S. B IVINS, JJ., joined.

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Ydale Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Rachel Newton, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

      The petitioner was convicted of first degree felony murder, first degree premeditated
murder, conspiracy to commit first degree felony murder, conspiracy to commit first degree
premeditated murder, especially aggravated burglary, facilitation of especially aggravated
robbery, three counts of especially aggravated kidnapping, and three counts of aggravated
assault by a Shelby County Criminal Court jury. On direct appeal, this court affirmed the
judgments of the trial court with the exception of the petitioner’s conviction for conspiracy
to commit felony murder, which it reversed. The Tennessee Supreme Court denied his
application for permission to appeal.               See State v. Ydale Banks, No.
W2000-00963-CCA-R3-CD, 2004 WL 1686868 (Tenn. Crim. App. July 28, 2004), perm. to
appeal denied (Tenn. Jan. 24, 2005). The underlying facts of the case were recited by this
court on direct appeal as follows:

              The convictions now under review emanated from events of August 12,
       1995, which resulted in the death of Dorothy Webber, a 47-year-old nurse and
       beauty shop operator. The victim resided with her husband, Leslie B.
       Webber, Sr., and on the night of August 12, 1995, her son, Leslie B. Webber,
       Jr., was staying at her residence.

             The victim’s son testified that, on that night, he awakened to discover
       a female standing in the hallway. She held a revolver and told the younger
       Webber that he was “supposed to be asleep.” A male intruder then entered the
       room, held a pistol to the younger Webber’s head, and tied his hands with a
       vacuum cleaner cord. The intruders wore beige pants, white shirts, and white
       caps. The shirts and caps bore “Krispy Kreme Doughnut” logos. The
       younger Mr. Webber heard the voice of a third intruder, a male.

               At one point, a male intruder placed a pillow over Mr. Webber’s head,
       and Mr. Webber heard someone ransacking his room. He testified that the
       intruders asked where the money was, and Mr. Webber replied there was no
       money in the house. Mr. Webber heard the intruders addressing the elder Mr.
       Webber in the family den and telling him that the intruders were taking his
       wife, the victim, with them. When the younger Mr. Webber untied himself
       and went into the den, the intruders were gone, and he found his father
       handcuffed, dazed, and with a knot on his head. Both the victim and the
       victim’s car, a Toyota Camry, were gone. The younger Mr. Webber testified
       that the intruders had entered the house by posing as Krispy Kreme employees
       selling or giving away doughnuts. A box of doughnuts was left behind in the
       den.

               Approximately ten days later, the victim’s body was found in a field in
       a rural area in Mississippi. Her hands had been cuffed behind her back, and
       duct tape had been wrapped around her head. The medical examiner testified

                                             -2-
that the victim had died between August 13 and 16; she had suffocated as a
result of the tape across her mouth and nose.

        Several weeks after the body was discovered, Memphis Police Officers
interviewed the [petitioner] about the home invasion and the death of the
victim. In the resulting statement, the [petitioner] admitted that he had been
involved in the planning of a robbery or kidnapping. Three other men, a
woman, and the [petitioner] believed that a second son of the Webbers, Kevin
Webber, was a drug dealer who had amassed $300,000 in cash. The cabal of
five decided three of them would gain entry to the Webber house by posing
as Krispy Kreme employees. They purchased white shirts and caps and
arranged to have Krispy Kreme logos affixed. The group talked about
kidnapping the victim as a means of extracting a $300,000 ransom payment
from Kevin Webber, should the money not be found in the elder Webbers’
house. The [petitioner] waited in a vehicle while three of his associates
entered the house. After about fifteen minutes, the intruders emerged from the
Webbers’ garage in the victim’s Camry; the victim was in the backseat. In his
statement, the [petitioner] stated that the group took the victim to a room in
the Elvis Presley Inn. Later, they took her to a tire shop to which they had
access; they kept her there throughout the night. On the following morning,
they placed the victim inside a U-Haul truck, and the [petitioner] drove the
truck into Mississippi, where he backed it into a field. According to the
[petitioner]’s statement, two of the other men removed the still-conscious
victim from the truck and left her in the field. The victim was not “supposed
to die.”

       Following guilty verdicts on the various charged offenses and faced
with the state’s quest for the death penalty, the lower court conducted a jury
hearing on the issue of penalty on the murder convictions. The victim’s
mother testified that the loss of her daughter “meant everything to [her]
because [she did not] have her any more, and . . . [would not] see her
anymore.” She testified that the victim was “the love of the family and
everybody loved her.” Following this testimony, the state introduced
photographs of the victim’s body taken at the scene and in the morgue.

        The [petitioner]’s sisters testified in his behalf. One testified that the
[petitioner] is a “valuable asset to [his] family” and is loved by them. She
testified that the [petitioner] had a six-year-old daughter, with whom he
maintained a close relationship despite his incarceration. The other sister
affirmed the family’s affection for the [petitioner] and testified that the

                                       -3-
        [petitioner] had always held a job and did so until he was incarcerated. She
        testified that he was skilled as a cook.

               The mother of the [petitioner]’s daughter testified that the [petitioner]
        worked very hard and aspired to be a chef. She testified that the [petitioner]
        had a strong bond with his daughter and provided well for her financially.
        Despite the [petitioner]’s incarceration, he remained close to his daughter.

Id. at *1-3.

        The petitioner filed a petition for post-conviction relief, a supplemental petition, and
then four “amended and superseding” petitions, in which he raised, among other things,
allegations of ineffective assistance of counsel and allegations concerning the legibility of
the jury instructions. The court conducted an evidentiary hearing on the matter, at which the
petitioner testified that counsel failed to obtain a written or oral ruling on his motion to
suppress.1 The petitioner complained that the trial judge fell asleep during the prosecutor’s
cross-examination of him and had to be aroused by the court reporter. He recalled that the
trial judge said that “he would halt the proceedings right there and order the transcripts of
the part that he missed and we would come back in at a later date and finish up the rest of
the hearing.” The petitioner admitted that the judge was awake during the testimony from
the police officers and arguments from the attorneys, so he was unsure of how long the
judge was asleep. The petitioner explained that the judge was inattentive throughout the
hearing and at times during trial due to his television show schedule. The petitioner said that
counsel never made an objection on the record regarding the trial judge’s falling asleep at
the suppression hearing. Other than the two issues concerning the motion to suppress, the
petitioner had no other complaints concerning counsel’s performance during trial.

        The petitioner next discussed his complaints concerning the jury instructions. He
stated that the trial court submitted instructions to the jury that contained the court’s
handwritten corrections, additions, and deletions, rather than providing the jury with a clean
copy of the instructions. In particular, the court had omitted two of the charges against the
petitioner and wrote those in with “an arrow to the rest of the indictment numbers as to
where they should have been placed.” He claimed that the handwriting was difficult to read.
He acknowledged that counsel raised the issue on appeal but stated that the appellate court
determined that the issue was waived because it had not been raised in the motion for new
trial. He also testified that the trial court failed to charge the jury with any lesser-included
offenses of felony murder. He stated that counsel argued to the trial court that certain lesser-

        1
          We limit the majority of our recitation of the testimony from the evidentiary hearing to that relevant
to this appeal.

                                                      -4-
included offenses should be included, but the court refused to include anything other than
facilitation. He said that the court also did not charge voluntary manslaughter as a lesser-
included offense of premeditated first degree murder. He also complained about the
definition of “reasonable doubt” that was included in the jury instructions.

        The petitioner next complained about the jury deliberations and the hours the jury
worked. In particular, the day the verdicts were returned in both the guilt and penalty
phases, the jury worked from 8:00 a.m. until 1:00 a.m. the following morning. The
sentencing hearing did not begin until 9:00 or 10:00 p.m. after the jury had deliberated on
his guilt the entire day. The petitioner recalled that, at one point prior to the jury returning
a verdict in the sentencing portion of his trial, the prosecutor and counsel jointly approached
the trial judge and asked him to declare a mistrial, but the judge indicated that “he had to let
them stay back there until they c[a]me up with a decision.”

        The petitioner also testified that his mother was not allowed to testify on his behalf
at the sentencing hearing. He explained that his mother had an asthma attack and passed out
as she was about to take the stand, and the trial court would not grant a recess to allow her
to testify.

        Gloria Banks, the petitioner’s mother, testified that counsel tried unsuccessfully to
get a recess after her asthma attack so she could testify at the sentencing hearing. If she had
been given the opportunity to testify, she would have testified that the petitioner was a good
child and had held a job since the time he was able. She said that the petitioner loved and
cared for his daughter.

        Counsel testified that, during the suppression hearing, the attorneys and court staff
noticed that the trial judge had fallen asleep. The incident occurred sometime during the
cross-examination of the petitioner, after testimony from the two State’s witnesses and the
direct examination of the petitioner. During the commotion created by the attorneys trying
to decide what to do, the judge woke up. Counsel acknowledged that the judge said he
would review the transcript from the portion of the testimony he missed, but the judge would
not be able to ascertain the demeanor of the witness. Counsel testified that he thought there
had been a final ruling on the motion to suppress, and he would not have proceeded without
a ruling as the petitioner’s statement “was the big key to this whole trial.” It was his
understanding that the motion was denied, but he did not believe there was a written ruling.

        Counsel testified that, during the course of trial, the jury was oftentimes left waiting
in the jury room for hours until the trial judge arrived. He said that the jury arrived first
thing in the morning but that court did not start until late afternoon and continued late into
the night. He recalled that, the day before the verdict, the jury received the charge and then

                                              -5-
decided at 8:00 p.m. that it wanted to have dinner and start deliberations in the morning.
The jury deliberated the entire next day, returning a verdict after dinner, and then the trial
court started the sentencing hearing. Counsel recalled that the attorneys approached the
judge in chambers about the late hours and requested a mistrial, and the judge told them that
“[the jury was] going to deliberate until [they were] finished tonight and that’s just it.”
Counsel noted that he billed nineteen hours in trial that day. In addition, counsel noted that
the trial judge “dozed off” several times during trial.

        Counsel testified that the attorneys and trial court had a lengthy discussion about the
jury charge prior to the court’s instructing the jury. During that discussion, several
corrections and changes were made to the court’s initial charge. He assumed, as was normal
practice, that the trial court gave the jury a “clean copy” of the instructions after the
corrections and changes were made and read to the jury. It was not until he received the
appellate record that he learned the jury had been given a copy of the instructions that
contained the trial court’s handwritten notations and corrections. Therefore, he raised the
issue as plain error on appeal. Counsel felt that the instructions, as submitted, were difficult
to follow and, had he known they were submitted to the jury in that fashion, he would have
objected.

       When asked why he did not raise as an issue on appeal the long hours worked by the
jury, counsel stated that his strategy when preparing an appeal was to submit only the
strongest arguments to the court. Counsel also testified that the petitioner’s mother was
preparing to testify when she passed out, and she never ended up being able to testify.

        On cross-examination, counsel acknowledged that the appellate court reviewed the
testimony from the suppression hearing and affirmed the denial. He again stated that,
although he should have gotten a written ruling on the motion to suppress, he was informed
that the motion was denied. He also explained again that he only raises the issues on appeal
that he believes to be the strongest and that he goes through the entire trial record in making
that determination.

       The assistant district attorney who prosecuted the petitioner testified that he
remembered the trial judge “conduct[ing] a very professional courtroom.” When questioned
whether he remembered the trial judge falling asleep during the suppression hearing, the
prosecutor said that he did not recall that happening and he “was unaware of it” if the judge
did. Concerning the long hours of jury deliberation, the prosecutor testified that he
remembered the lawyers talking amongst themselves about how long the judge was going
to allow the jury to work, but they were informed by the judge that the jurors “wanted to
continue to work[.]”


                                              -6-
       Donna Murray, an employee of counsel’s law firm, testified that she was present for
the petitioner’s suppression hearing and trial. Murray recalled that the trial judge was
“fighting sleep . . . a lot of the hearing”and “kept nodding off and catching himself” during
the petitioner’s testimony. She recalled that the judge actually fell asleep at one point and
had to be woken by one of his clerks but said that he was asleep for “less than a minute.”
Murray acknowledged that the trial judge requested a transcript of the sentencing hearing.
Murray also remembered that the trial judge took a long break in the middle of the trial to
conduct a television interview with Geraldo Rivera. She said that the hours of the trial were
“[v]ery long” and that the jury arrived early in the morning but had to wait until the
afternoon for the trial to resume. She recalled that the sentencing portion of the hearing
went until 2:00 or 2:30 a.m., and the jury did not eat that night. She said that the attorneys
asked the judge for a mistrial, but the judge indicated that “[h]e wanted a verdict.”

       After the conclusion of the hearing and argument from the parties, the post-conviction
court entered a thorough order denying post-conviction relief.

                                        ANALYSIS

       The petitioner argues that: (1) the post-conviction court erred in finding that he was
not prejudiced by the instructions submitted to the jury that contained the trial court’s
handwritten corrections; (2) the post-conviction court erred in determining that he received
the effective assistance of counsel at trial and on appeal; and (3) the post-conviction court
erred in not granting a new trial due to cumulative error.

        Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(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 Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the trial court’s findings as to the credibility of witnesses or the weight of their
testimony. Id. 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 issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given only
to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).


                                             -7-
                                         I. Jury Instructions

       The petitioner first argues that the post-conviction court erred in finding that he was
not prejudiced by the “confusing and illegible jury instructions that were submitted to the
jury.” He asserts the instructions “[a]t best . . . look like a rough draft,” consisting of “a
quagmire of delineations and notations[.]”

        Rule 30(c) of the Tennessee Rules of Criminal Procedure provides, “[E]very word
of the judge’s instructions shall be reduced to writing before being given to the jury.” Tenn.
R. Crim. P. 30(c). However, failure to follow this rule, although error, is not reversible
unless it “more probably than not affected the judgment.” Tenn. R. App. P. 36(b); State v.
Gorman, 628 S.W.2d 739, 740 (Tenn. 1982). It is not error for part of the charge to be
handwritten while the remainder is typewritten unless it falls to the level of the writing
described in Pedigo v. State, 236 S.W.2d 89, 90 (Tenn. 1951), of “contain[ing] incompetent
and irrelevant matter, illegible interlineation and meaningless annotations [that] might as
well have been written in a foreign language and could serve no purpose except to confuse
the jury.” State v. Tyson, 603 S.W.2d 748, 754-55 (Tenn. Crim. App. 1980). The form of
the instructions is not as important as their content. See State v. Cravens, 764 S.W.2d 754
(Tenn. 1989) (holding that the reversal in State v. Martin, 702 S.W.2d 560 (Tenn. 1985),
was for the content of the instructions, not the form, and that the form of the instructions in
that case, although not as clear as directed by Martin, did not warrant reversal).

        In challenging the jury instructions in the present case, the petitioner relies on Pedigo,
236 S.W.2d 89 and Adcock v. State, 236 S.W.2d 88 (Tenn. 1949), as well as distinguishes
his case from State v. Hodges, 7 S.W.3d 609 (Tenn. Crim. App. 1998) and State v. Jason
Thomas Beeler, No. W1999-01417-CCA-R3-CD, 2000 WL 1670945 (Tenn. Crim. App.
Nov. 2, 2000).2 He asserts that the instructions given by the trial court contained “multiple
alterations that are illegible and rendered potentially meaningless in some parts, if nothing
else due to the confusing manner in which the deletions and additions were made with lines,
arrows, brackets and writing sideways along the margins of some pages.”

        In Pedigo, our supreme court found that the charge provided to the jury contained
“incompetent and irrelevant matter, illegible interlineation and meaningless annotation,”
such that it was unacceptable and required reversal of the petitioner’s conviction. 236
S.W.2d at 90. The court observed that the charge “might as well have been written in a
foreign language and could serve no purpose except to confuse the jury.” Id. The court
noted that it was a fair inference that the jury was confused and not clearly instructed since
it returned a verdict convicting the defendant as an “accessory” when neither the indictment

       2
           The Beeler opinion was designated “not for citation” by our supreme court.

                                                   -8-
nor the evidence supported such a finding. Id.

       In Adcock, the trial court delivered part of the jury charge orally and ex tempore and
then read part of the charge from a typewritten form which contained not only points of law
applicable to the case, but also many points of law that were inapplicable and confusing.
236 S.W.2d at 88. In reading from the form, the trial judge read only the parts that were
appropriate, but then handed the jury the entire typewritten form which it took into the jury
room. Id. at 88-89. In determining that the manner in which the jury instructions were given
mandated reversal, our supreme court noted that the jury was charged on “much law that had
no application to the facts of this case” as well as “given instruction on many facts which
were not in evidence and were contrary to the theory of the [d]efendant.” Id. at 89.

       In Hodges, this court found that the trial court’s inclusion of “a single irrelevant
instruction” with “no illegible interlineation and no meaningless annotation” did not rise to
the magnitude of impropriety in Pedigo and Adcock. 7 S.W.3d at 628-29. We concluded
that no reversible error had occurred. Id. at 629.

        In Beeler, the defendant complained that the written instructions given to the jury
were totally confusing and prejudicial because, rather than retyping the instructions, the trial
court crossed out inapplicable passages and sections. 2000 WL 1670945, at *30. This court
reviewed the written instructions that were provided to the jury and noted that they consisted
of a series of printed, pattern instructions that referenced various sections of the Tennessee
Criminal Pattern Jury Instructions and that, on ten of the printed pages, the trial court had
crossed out certain language that consisted mostly of definitions and elements of the
offenses that did not apply. Id. at *31. The trial court instructed the jury to ignore the
crossed-out sections, and this court concluded that there was no indication that the jurors did
not follow the instructions. Id. This court observed that giving the jury written instructions
with blackened-out portions was “risky” but determined that there was no prejudicial error
in that case. Id.

        In ruling on this issue, the post-conviction court noted that the trial court informed
the jury that certain interlineations had been made to the charge but did not instruct the jury
regarding the crossed-out portions of the charge. The court also noted that all but thirty-two
of the one hundred and two pages of instructions provided to the jury had some type of
handwritten alteration, of most concern being the first page “which superimpose[d] by hand
two deleted indictments and the lesser included offenses which were to be considered by the
jury.” The court found that, although legible, the manner in which the instructions were
imposed was potentially confusing but that any confusion was likely corrected by “an
appropriate charge as to the verdict pages and the appropriate order of consideration for
lesser included offenses as to each charge.”

                                              -9-
        The court observed that the instruction on facilitation of a felony contained “major
handwritten interlineations” but was a complete and correct statement of the law at the time
of trial. The court was concerned that some of the portions of the charge being “bracketed,
circled, or underlined with no instruction to the jury about such notations” might have drawn
undue emphasis to those portions of the charge. However, the court concluded that the
instructions in this case fell more in line with those given in Beeler that were determined to
be non-prejudicial, rather than those given in Adcock and Pedigo.

       After our review, we conclude that the record supports the post-conviction court’s
determination. Although it would have been preferable for the jury to have a cleaner copy
of the instructions, the handwritten instructions were legible and not “meaningless.”
Moreover, the instructions were read, as corrected, to the jury prior to deliberations.
Therefore, the jury would have heard the correct instruction prior to reading the copy
provided to them. Furthermore, the court did instruct the jury that interlineations had been
made to the charge. The petitioner has failed to prove that the jury was unable or failed to
follow the instructions or, accordingly, any prejudicial error.

                              II. Ineffective Assistance of Counsel

        The petitioner next raises several allegations of ineffective assistance of counsel. He
argues that counsel rendered ineffective assistance by failing: (1) to object and preserve the
record regarding the trial judge’s sleeping and general demeanor during the suppression
hearing; (2) to obtain a written ruling from the trial court on the petitioner’s motion to
suppress; (3) to properly preserve his objections to the late night jury deliberations and raise
the issue on appeal; (4) to review the jury instructions after the court made “delineations and
additions” and challenge the form of the jury instructions in the motion for new trial; (5) to
object to improper statements made by the prosecutor in closing argument; (6) to challenge
the trial court’s failure to charge certain lesser-included offenses and raise the issue on
appeal; and (7) to object to the jury instruction on reasonable doubt.3

       The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.
Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has
the burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,
466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is

        3
         We have combined the petitioner’s issues that rely on the same argument and/or that are logically
addressed together.

                                                  -10-
applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong
test:

        First, the [petitioner] 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 [petitioner] by the Sixth
        Amendment. Second, the [petitioner] must show that the deficient
        performance prejudiced the defense. This requires showing that counsel’s
        errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
        result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
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, 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 prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. The same principles apply in determining
the effectiveness of trial and appellate counsel. Campbell v. State, 904 S.W.2d 594, 596
(Tenn. 1995).

                      A. Trial Judge’s Sleeping and General Demeanor

        The petitioner argues that counsel rendered ineffective assistance by failing to object
and preserve the record regarding the trial judge’s sleeping during the suppression hearing
as well as the judge’s general demeanor.4 He asserts that “justice should never sleep . . . and
that trial counsel[’]s failure to properly preserve the issue and the sleeping itself results in
per se prejudice to a defendant.”



        4
           The petitioner also argues that counsel was ineffective for failing to preserve the record regarding
the trial judge’s general “demeanor,” but he does not provide any argument in support of that assertion and
simply refers to his argument regarding the judge’s sleeping.

                                                     -11-
        With regard to this issue, the post-conviction court found that there was testimony at
the evidentiary hearing from the petitioner, counsel, and counsel’s assistant that the trial
judge fell asleep for “an extremely brief period of time” during the cross-examination of the
petitioner but that such testimony was controverted by the prosecutor, who testified that he
did not remember such incident. Nevertheless, the post-conviction court observed that the
trial judge appeared to have acknowledged that his attention briefly lapsed during a portion
of the suppression hearing. The court noted that both counsel and the court took appropriate
steps to mitigate any potential prejudice to the petitioner and, even though the better course
may have been for counsel to record the incident for the record, the petitioner did not
demonstrate that the trial court’s determination on the motion to suppress or the appellate
court’s decision on the issue would have been different.

        After review, we conclude that the record supports the post-conviction court’s
determination. As noted by the post-conviction court, the trial judge reviewed the transcript
from the hearing, including the “10, 15 seconds . . . that [the judge] lapsed on,” prior to
issuing his ruling and allayed counsel’s concerns about judging the petitioner’s demeanor
as a witness. Moreover, this court reviewed the entire testimony presented at the
suppression hearing and upheld the trial court’s denial of the petitioner’s motion to suppress.
See Ydale Banks, 2004 WL 1686868, at *3-6. Therefore, even if counsel was deficient for
failing to object and preserve the issue for the record, the fact that this court reviewed the
testimony from the suppression hearing and affirmed the trial court’s denial of the motion
to suppress precludes the petitioner from establishing that he was prejudiced by any inaction
by counsel.

                        B. Written Ruling on Motion to Suppress

        The petitioner argues that counsel rendered ineffective assistance for failing to obtain
a written order from the trial court on the motion to suppress. He asserts that “[i]t would
have been interesting to see what such a ruling would have said, especially in light of the
fact that the trial judge fell asleep.”

       As to this issue, the post-conviction court found that counsel was not ineffective in
failing to obtain a final written ruling on the motion to suppress. The court noted that
counsel testified that he received pretrial notice that the motion was denied even if he did
not request a written order. The court also noted that the appellate court, after a full review,
concluded that the evidence supported the trial court’s determination that the petitioner’s
confession was freely and voluntarily given. Accordingly, the court found that, even if
counsel was deficient in failing to request a written order, the petitioner failed to
demonstrate any prejudice because “it is unlikely that either the trial court or the appellate
court would have reached a different conclusion.”

                                             -12-
        We conclude that the record fully supports the post-conviction court’s determination.
As noted previously, this court thoroughly reviewed the denial of the motion to suppress on
direct appeal and affirmed the denial. Therefore, the petitioner has not and cannot show that
he was prejudiced by the absence of such written order.

                            C. Late-Night Jury Deliberations

       The petitioner argues that counsel rendered ineffective assistance for failing to
properly preserve his objection to the late-night jury deliberations and for failing to raise the
issue on appeal. He asserts that the late hours worked by the jury were prejudicial to him.

         According to the trial record, the jury was instructed on the guilt phase of trial on
February 3, 2000. After the charge, the jury informed the court that it wanted to eat dinner
and begin deliberations the next morning. Therefore, the jury was adjourned at 7:25 p.m.
The jury began deliberating on the guilt phase at 8:15 a.m. on February 4 and rendered its
verdicts at 5:30 p.m. After almost a two-hour recess, the sentencing phase of the petitioner’s
trial started at 7:40 p.m. The sentencing phase concluded and jury deliberations began at
10:10 p.m. The jury returned with its sentence at 2:05 a.m. on February 5.

       With regard to this issue, the post-conviction court found that counsel performed
deficiently because he should have made a formal objection that the jurors “were no longer
alert enough to both concentrate on the proof . . . or alert enough to give proper
consideration to the appropriate sentencing verdict.” However, the court concluded that
there was no prejudice because the jury deliberated for four hours and returned with a
verdict of life without the possibility of parole, rather than death, despite the State’s
presentation of “graphic testimony in support of [its] one aggravating circumstance, that the
murder was especially heinous, atrocious or cruel” and the petitioner’s presentation of
“limited mitigation regarding his family’s affection for him and his work history.”

       Initially, we disagree with the post-conviction court’s conclusion that counsel
preformed deficiently. The prosecutor testified that the trial court informed them that the
jury “wanted to continue to work[.]” In addition, there was no evidence offered that the jury
was no longer alert enough to concentrate on the proof and the deliberation process. The
record shows that, on February 3, the jury communicated its wishes through the bailiff to not
begin deliberations until the following morning; therefore, it is a reasonable inference that
the jury would have likewise communicated its wishes on February 4 had it felt unalert
enough to deliberate that evening.

      In any event, we agree that the record supports the post-conviction court’s
determination regarding the petitioner’s failure to show prejudice. As noted above, the State

                                              -13-
presented “graphic testimony in support of [its] one aggravating circumstance, that the
murder was especially heinous, atrocious or cruel in that it involved torture or serious
physical abuse beyond that necessary to produce death.” In response, the petitioner
presented “limited mitigation regarding his family’s affection for him and his work history.”
Despite what appeared to be heavy proof in favor of the death penalty, the jury deliberated
for four hours and imposed a lesser sentence. We cannot conclude that, but for counsel’s
failure to object at trial and raise the issue on appeal, the outcome would have been different.

                 D. Review and Challenge Form of Jury Instructions

        The petitioner argues that counsel rendered ineffective assistance for failing to review
the jury instructions and challenge the form of the jury instructions in the motion for new
trial. As to this issue, the post-conviction court found that counsel made a reasonable
assumption that the suggested changes, additions, and corrections would be made in
typewritten form, given that was the normal practice followed by the criminal court judges
and their discussion took place “long before the charge was read to the jury.” Accordingly,
the court concluded that counsel was not deficient for failing to anticipate that the
instructions would be given to the jury with the handwritten interlineations. However, the
court found that counsel did perform deficiently in failing to review the instructions prior
to filing the motion for new trial and raise the issue in such motion. In any event, the court
found that the petitioner was not prejudiced by counsel’s inaction as it already concluded
earlier that the instructions “f[e]ll more closely in line with those cases in which the
appellate courts have determined no reversible error occurred[.]”

       We conclude that the record supports the post-conviction court’s conclusion that
counsel did not perform deficiently in failing to review the charge after changes were made
and prior to them being submitted to the jury. Counsel had a copy of the instructions, had
objected to certain instructions, and the court had ample time to make the corrections in
typewritten form as was normal practice amongst the criminal court judges. As such, we
cannot agree with the post-conviction court’s conclusion that counsel’s conduct fell below
an objective standard of reasonableness in thereafter failing to review the instructions prior
to the motion for new trial when counsel had been present to hear the instructions read, as
corrected, to the jury and would have, therefore, had no reason to anticipate that the
instructions were not given to the jury in clean form.

       In addition, the record supports the post-conviction court’s conclusion that the
petitioner was not prejudiced by any deficiency. As thoroughly addressed earlier, the
judge’s handwritten instructions were legible and correct and accurate statements of the law.
The instructions were read, as corrected, to the jury prior to deliberations. Therefore, the
jurors would have heard the correct instruction prior to reading the copy provided to them.

                                             -14-
In addition, the court did instruct the jury that interlineations had been made to the charge.
Accordingly, the petitioner has failed to prove that he was prejudiced by counsel’s failure
to review the instructions before they were read to the jury and raise the issue in the motion
for new trial.

                   E. Prosecutor’s Statements in Closing Argument

       The petitioner argues that counsel rendered ineffective assistance by failing to object
to “the prosecutors’ repeatedly, improperly stating their own personal opinions to the jury
both during the guilt and penalty phases of his trial.”

        We initially note that it appears that the petitioner abandoned this claim. It was
contained in his initial petition for post-conviction relief but was not included in any of his
subsequent petitions. He did not incorporate his initial filing by reference and specifically
titled his subsequent petitions as “superseding.” Moreover, the petitioner did not question
counsel regarding, or present any proof concerning, this issue during the evidentiary hearing.

       In any event, we will address the petitioner’s claim in light of the fact that the post-
conviction court reviewed it. As noted by the post-conviction court, “[the] petitioner has
given the court no guidance, by way of reference to the trial record, as to when in the trial
the alleged misconduct occurred or which specific statements of the prosecutor were
objectionable.” The post-conviction court reviewed the entire record and surmised which
remarks by the prosecutor might possibly apply to the petitioner’s allegations. On appeal,
the petitioner again does not pinpoint which remarks by the prosecutor were improper.
Instead, he only points to the prosecutor’s remark in closing argument that the post-
conviction court surmised he was challenging: when the prosecutor asked the jurors to view
the case from the victim’s perspective.

        We conclude that, any possible deficiency notwithstanding, the petitioner has failed
to prove how he was prejudiced by counsel’s failure to object to the prosecutor’s statement.
In fact, the petitioner failed to provide any argument at all concerning how he was
prejudiced. As found by the post-conviction court, this court concluded on appeal that there
was sufficient evidence to support the petitioner’s conviction for first degree murder and that
“a rational jury could conclude that the duct tape, as applied to this victim, was ‘done so
willfully, deliberately, and intentionally to cause the victim’s suffocation and death.’” The
court noted that the petitioner confessed to being involved in the kidnapping and death of
the victim, admitted to having detailed discussions with others concerning the plan to kidnap
the victim, and left the victim gagged and bound in rural Mississippi. The post-conviction
court concluded that the result of the proceeding would not have been different had counsel
objected to the prosecutor’s statement in closing argument. The record supports this

                                             -15-
determination. The petitioner has failed to allege, and we fail to see, any possibility that the
result of the trial would have been different had counsel objected to the prosecutor’s
statement.

                               F. Lesser-Included Offenses

       The petitioner argues that counsel was ineffective for failing to request that the trial
court charge voluntary manslaughter as a lesser-included offense of premeditated first degree
murder. He also argues that counsel should have pursued, in the motion for new trial and
on appeal, the trial court’s failure to charge lesser included offenses of felony murder.

       In ruling on this issue, the post-conviction court reviewed the law concerning lesser-
included offenses and noted that the trial court had charged the jury with “intermediate” or
“buffer” offenses between the charge the petitioner asserts should have been given and the
charge of which he was convicted. Therefore, the post-conviction court concluded that there
was no prejudice in this case in light of the “posture of the appellate courts regarding the
harmlessness of a trial court’s failure to charge certain ‘buffer’ offenses[.]”

        With regard to counsel’s failure to pursue in the motion for new trial and on appeal
the trial court’s not charging any lesser-included offenses of felony murder, the post-
conviction court found that counsel did not perform deficiently in not raising the issue in the
motion for new trial because the supreme court decision in State v. Ely, 48 S.W.3d 710
(Tenn. 2001), addressing the lesser-included offenses of felony murder, was not released
until almost a year after the motion for new trial was filed. However, the post-conviction
court found that counsel performed deficiently in failing to raise the issue on appeal because
the oral arguments in the petitioner’s appeal did not take place for two years after the release
of the Ely decision. In any event, the post-conviction court found that there was no
prejudice because the jury had rejected the intermediate lesser-included offenses of
premeditated murder, the petitioner’s premeditated murder and felony murder convictions
had been merged, and this court on appeal determined that the evidence was sufficient to
support both convictions. Relying on this court’s reasoning in a similar scenario addressed
in State v. Marlon Marktavias Fitzgerald, No. W2001-03096-CCA-R3-CD, 2003 WL
261940, at *10 (Tenn. Crim. App. Feb. 7, 2003), perm. to appeal denied (Tenn. July 7,
2003), the post-conviction court concluded that the trial court’s failure to charge lesser-
included offenses of felony murder was harmless beyond a reasonable doubt because “the
jury’s intentions to convict the defendant of first degree murder was not altered by the trial
court’s failure to charge lesser included offenses to felony murder.”

      After review, we conclude that the record supports the post-conviction court’s
determinations. The trial court instructed the jury on the following lesser-included offenses

                                              -16-
of first degree murder: facilitation of first degree murder, second degree murder, and
facilitation of second degree murder, as well as reckless homicide, facilitation of reckless
homicide, criminally negligent homicide, and facilitation of criminally negligent homicide.
Based on the fact that the jury found the petitioner guilty of the greater offense and rejected
the intermediate lesser-included offenses, any deficiency on counsel’s part was harmless and
precludes the petitioner from establishing prejudice. See State v. Banks, 271 S.W.3d 90,
126 (Tenn. 2008); State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002); State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998).

        Moreover, the record supports the post-conviction court’s analysis of counsel’s
failure to pursue as an issue in the motion for new trial and appeal the trial court’s not
charging lesser-included offenses of felony murder. We cannot conclude that counsel
performed deficiently in failing to raise the issue in the motion for new trial because the
relevant supreme court decision addressing the lesser-included offenses of felony murder
was not released until almost a year after the motion for new trial was filed. In addition, we
need not address whether counsel performed deficiently in failing to raise the issue on
appeal, because the petitioner has failed to prove any prejudice caused by counsel’s inaction.
In a similar case, Fitzgerald, this court concluded that the trial court’s failure to charge
lesser-included offenses of felony murder was harmless beyond a reasonable doubt in light
of the jury’s convicting the defendant of felony murder and premeditated murder, after the
jury was properly charged with lesser-included offenses of premeditated murder, and this
court determined that there was sufficient evidence supporting both convictions. Upon our
thorough review of the record in this case, we cannot conclude that there is any reasonable
probability that the result of the petitioner’s appeal would have been different had counsel
challenged the trial court’s failure to charge any lesser-included offenses of felony murder.

                         G. Reasonable Doubt Jury Instruction

        The petitioner argues that counsel rendered ineffective assistance for failing to object
to the “moral certainty” portion of the reasonable doubt charge submitted to the jury. The
petitioner cites to State v. Rimmer, 250 S.W.3d 12 (Tenn. 2008), a case released well after
his trial and appeal, but does not support his claim with any argument and has therefore
waived review of this issue. See Tenn. Ct. Crim. App. R. 10(b).

       In any event, the post-conviction court, citing Rimmer, State v. Dellinger, 79 S.W.3d
458 (Tenn. 2002), and State v. Bush, 942 S.W.2d 489 (Tenn. 1997), noted that, “[a]lthough
such language has been discouraged, numerous appellate courts have approved the pattern
charge.” Therefore, the court found that counsel was not ineffective in either objecting to
the charge or raising a challenge to it in the motion for new trial.


                                             -17-
       We agree with the post-conviction court’s determination. Although the “moral
certainty” language has been discouraged, the courts have concluded that the jury instruction
did not result in the denial of due process. See Rimmer, 250 S.W.3d at 31; Dellinger, 79
S.W.3d at 501-02; Bush, 942 S.W.2d at 520-21. Therefore, the petitioner has failed to show
that counsel was deficient for not objecting to the charge or any resulting prejudice.

                                  III. Cumulative Error

        The petitioner lastly argues that the post-conviction court erred in not granting him
a new trial due to cumulative error. The petitioner is merely resubmitting the issues he has
already presented, and we respectfully disagree with his assertion that he is entitled to a new
trial based on cumulative error.

                                      CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the denial of post-
conviction relief.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                             -18-
