IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED JANUARY SESSION, 1999 March 30, 1999 Cecil W. Crowson RICKY J. SUMMERS, ) Appellate Court Clerk C.C.A. NO. 01C01-9708-CC-00323 ) Appe llant, ) ) ) FRANKLIN COUNTY VS. ) ) HON. J. CURTIS SMITH, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

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

FOR THE APPELLANT: FOR THE APPELLEE: RICKY SUMMERS JOHN KNOX WALKUP Pro Se Attorney General and Reporter MCRCF Wa rtburg, T N 378 87 CLINTON J. MORGAN Assistant Attorney General Fifth Avenu e North Nashville, TN 37243 J. MICHAEL TAYLOR District Attorney General STEVEN M. BLOUNT Assistant District Attorney General Dinah Shore Bo ulevard Win cheste r, TN 37 398

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defenda nt, Ricky J. Sum mers, app eals the trial court’s order dismissing his petition for post-conviction relief. On August 23, 19 85, the Circu it Court for Franklin County found Defendant guilty of first degree premeditated murder following a jury trial. This C ourt affirm ed his co nviction, State v. Ricky Summ ers, No. 85-328-III, 1987 WL 16398 (Tenn . Crim. A pp., Nashville, Sept. 4, 1987), and the Tennessee Supreme C ourt de nied p ermis sion to appe al.

Defendant filed a timely petition for post-con viction relief on August 28, 1990, which was not heard by the trial court until March 26, 1997. The trial court denied relief, a dec ision that D efenda nt now a ppeals .

By adden dum to his origina l petition, Defendant argues fifteen assignme nts of error. These points may be classified as either errors by the trial court or errors by trial counsel. We find that the alleged errors by the trial court—the first nine—h ave been waived in this Court because of Defendant’s failure to bring them on direct appeal. Tenn. Code Ann. § 40-30-111, -112 (repealed and replace d by § 40 -30-206 (g)).

The last five assig nmen ts of error ch arge D efenda nt’s trial attorne ys with ineffective assistance of counsel. Specifically, Defendant contends that his trial counsel performed below the standard of competent criminal defens e attorneys by: (1) failing to sub poen a witne sses and e nsure their pre senc e in co urt for tria l, (2) failing to raise the defense of intoxication, (3) failing to raise the issue of mental defect or to seek a comp etency h earing a s to Defe ndant’s c apability to

-2- form necessary elements of the offense, (4) failing to object to unconstitutional jury instructions, and (5) failing to move for judgment of acquittal at the close of the State ’s proof.

To be entitled to post-conviction relief on the basis of ineffective assistance of counsel, Defendant must show that his counsel’s representation was “deficient” and tha t “the deficien t perform ance p rejudiced the defen se.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong, coun sel’s performance is not deficient when “the advice giv en, or the services rendered by the attorney, are within the range of competence demanded of attorneys in criminal cases .” Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5).

The second prong requires Defendant to show a reasonable probability that the result of the trial would have been different but for the deficient representation.

Strickland, 466 U.S. a t 694. “A reaso nable proba bility is a probability sufficient to underm ine confidence in the outcom e.” Id.

With respect to rationalization of attorney condu ct in an ineffective assistance of counsel case, the Strickland Court ins tructed, Judicial scrutiny of counsel’s performance must be highly defere ntial. It is all too tempting for a defendant to second-guess coun sel’s assistance after conviction or adverse sen tence. . . . A fair assessment of attorney perform ance requ ires that every effort be made to eliminate the distorting effe cts of hind sight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Id. at 688.

-3- I. FAILING TO SUBPOENA WITNESSES Defendant first alleges that he was “forced to trial with out ha ving his witnesses presen t” in violation of h is right to due process. According to the record of the e videntia ry hea ring, D efend ant info rmed his trial c ounsel prio r to trial about several witnesses who he claims were eyewitnesses to the crime. He testified that he requested the presence of those witnesses at trial and that the witnesses were present on one date. H owev er, the tr ial app arently did no t begin on that day and was instead rescheduled. Although su bpoena s were re-issued, they app arently we re never s erved, an d trial com menc ed as re -sched uled.

If afforded a post-conviction evidentiary hearing by the trial court, a petitioner must do m ore than m erely present evidence tending to show incompetent representation and prejudice; the petitioner must prove factual allegations by a prep ondera nce of the evidenc e. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1974) (s uperse ded by § 40-30-2 10(f) (requiring clear and convincing evidence)). When an evidentiary hearing is held, findings of fact made by that court are conclusive and binding on this Court unless the evidence preponderates against th em. Coop er v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0)).

As noted by this Court in Black v. State, 794 S.W.2d 752 (Tenn. Crim. App. 1990), [w]hen a petitioner contends th at trial coun sel failed to discover, interview, or present witnesses in support of the defense, these witnesses should be presented by the petitioner at the eviden tiary hearing. As a general rule, this is the only way the petitioner can establish that . . . a known witness was not interviewed, . . . or . . . the failure to have a known witness present or call the witness to the stand resulted in the denial of critical -4- evidence which inured to the prejud ice of the petitioner. It is elementary that neither a trial court nor an appellate court can specu late or gues s on the q uestion o f . . . what a witnes s’s testimony might have been if introduce d by defe nse co unsel. The same is true re gardin g the fa ilure to c all a known witness. In short, if a petitioner is able to establish that defense counsel was deficient in the investigation of the facts or calling a known witness, the petitioner is not entitled to relief from his conviction on this ground unless he can produce a material witness who (a) could have been found by reasonable investigation and (b) would have testified favorably in support of the defense if called. Id. at 757-58 (emphasis added) (footnote omitted). Defendant failed to present at his evidentiary hearing the witn esse s he co ntend s sho uld ha ve testifie d at his trial, and he testified that he cannot now recall the names of these witnesses.

Unde r these circ umsta nces, this Court is c onstraine d to den y relief.

II. FAILING TO RAISE DEFENSE OF INTOXICATION Defendant provides no argument on this issue in his brief. However, a portion of the pos t-conviction evidentiary hearing was de dicated to the subje ct, and the trial court found as follows: It is apparent from the trial transcript and the testimony of counsel at the hearing, a deliberate strategic decision was made at trial not to stress intoxication of the defendant. The defense was that the petitioner did not commit the crime , not tha t he co uld not remember the events because of intoxication or that he could not form a culpa ble mental state because of intoxication. Given the strategy of the defense, amplifying the issue of intoxication likely could have been counter-productive by damaging the credibility of the defend ant. The tactics adopted at trial should not now be second- guess ed by hin dsight.

W e agree . The c ourts o f this sta te have long “re cogn ized th at it is not our function to ‘second-guess’ tactical and strategical choices pertaining to defense matters or measure a defense attorney’s representation by ‘20-20 hindsigh t’ when deciding the effectiveness o f trial counsel.” Coop er v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (quoting Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 19 82)).

-5- The record of the post-conviction hearing does not preponderate against the trial court’s find ings.

III. FAILURE TO RAISE ISSUE OF MENTAL DEFECT OR TO SEEK COMPETENCY HEARING Defendant again failed to support this contention in his brief; nevertheless we will address the argument as it is characterized in the transcript of the evidentiary hearing. On this issue, the trial court found, Both [of Defendant’s trial counsel] testified at the hearing that petitioner cooperated with them fully in trial preparation and was comp etent. The trial transcript doe s not reflect any inability on petition er’s part to understand questions or communicate.

Apparen tly, petitioner bases his need for a mental evalua tion on his claim he was addicted to drugs and alcohol for many months prior to the incident. Petitioner w as in jail from his arrest in M arch until the trial in August. Even though no credible testimony was presented at the hearing petitioner was abus ing substanc es before incarceration to the extent he was incompetent during his jail stay or at trial, he certain ly had am ple time to “dry out” during his incarcer ation.

Defendant did not pre sent an y testimo ny, expert o r otherwise, at the post- conviction hearing tending to prove by a preponderance of the evidence that he was not mentally competent to stand trial. The typical statement by Defendant in suppo rt of this claim is as follows: “It’s hard for me to talk and to keep things on my m ind. If I’m telling yo u a jok e, I’ll get right in the m iddle of it and forget.

Tha t’s the reason there’s no way that I could commit a first degree murder.” The post-conviction transcript s upports the finding of the pos t-conviction court; therefore , this issue la cks m erit.

-6- IV. FAILURE TO OBJECT TO JURY INSTRUCTIONS Defendant argues that his trial cou nsel were ineffective for failing to object to those jury instructions that, in the first part, he contended were error by the trial court. W e find n o ineffe ctive as sistan ce by D efend ant’s tria l coun sel.

A. Definition of Malice Defendant argues that coun sel were ineffective for failing to object when the trial court omitted a definition of “malice” from the jury instructions for first degree murder. On page 1094 of the jury charge, which Defendant has appended to his resp onse b rief, we find, “F or you to find the defendant guilty of murder in the first d egree as cha rged in the first coun t of the indictm ent, the S tate must have proven beyond a reasonable doubt . . . that the killing was malicious, that is, that the defendant was of the state of mind to do the alleged wrongful act without legal justificatio n or excu se.” In add ition, Defen dant co ncede s that the court defined “ma lice” in its instruction for second degree m urder. We therefore find no de ficiency or p rejudice.

B. Definitio n of Delib erate Defendant next argues that co unse l shou ld have o bjecte d to the allege dly incom plete definition of “deliberate” given by the trial court. According to Defen dant, the trial court charged only that deliberate means “with a cool purpos e.” Defend ant doe s not, how ever, pres ent an a lternate de finition, state reasons why the charged instructed was deficient, or provid e any la w hold ing this instruction erroneous. This Court has previously held this definition to be sufficient. State v. Greg Baine, No. 03C01-9202-CR-00043, 1992 WL 151403, at *2 (Tenn. Crim. App., Knoxville, July 2, 1992) (“No special request was made -7- attempting to have the trial court define the term <coolness of purpose,’ and we are unable to find any error with the trial court’s failure to do so.”)

C. Presumption of Malice In this argum ent, Defendant asserts that his counsel should have objected to two jury instruc tions th at alleg edly shifted the burden of proof by creating a presum ption of m alice. The first challeng ed instruc tion read s, [I]f a deadly weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, then there is raised an inference of malice sufficient to support a conviction for murder in the seco nd de gree u nless it is rebutted by other facts and circumstances. A deadly weapon is any weapon or instrument which from the manner in which it is used or attempted to be used is likely to produce death or great bodily harm.

Because the jury convicted Defendant of first degree murder, rather than second degree murder, we find no prejudice even if failure to object constituted deficient perform ance o f counse l.

The next instruction allegedly read as follows, [T]he use of a dead ly weapo n by a pa rty who as saults an other with intent to commit murder in the first degree raises a presumption of malice, unless rebutted by other facts and c ircumstances to the contrary.

W e find this instruction to be constitutional under State v. Bolin, 678 S.W.2d 40 (Tenn. 1984). In Bolin, the supreme court held that this instruction did not unco nstitutio nally relieve th e State of its bu rden to prove beyon d a rea sona ble doubt each element o f the offens e. Id. at 44. That court stated, “The words of the presumption, the immediate conte xt in whic h they a ppea r, and th e over all context of the jury instructions, remove this case from th e due process trap adjudicated in Sandstrom [v. Montana, 442 U.S. 510 (1979 )], in our opinion.” Id.

-8- at 42. From a survey of the jury instructions provided by Defendant in this case, we similarly find that the instruction as given did not offend due process.

Furthermore, we find that eve n if the instructions we re errone ous, th ey did not have “‘substantial and injurious effect or influence in determining the jury’s verdict .’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Therefore, Defendant’s trial counsel did not provide ineffective assistance by failing to object to the instruction s.

D. Reasonable Doubt Defe ndan t’s final jury instruction argument complains that the “moral certainty” charg e given by the tr ial cou rt perm itted the jury to find guilt on a quantum of evidence less than the constitutionally required beyon d a rea sona ble doubt standa rd. He contends that he suffered ineffective assistance of counsel by his attorn eys’ failure to object to th is instruction .

The courts of this sta te have cons istently h eld this particular jury instruction to be constitutionally permissible; hence, the failure to object is not ineffective assistance of couns el. See Carter v. State, 958 S.W.2d 620 (T enn. 19 97); State v. Nicho ls, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266 (Tenn . Crim. A pp. 199 5); Pettyjo hn v. Sta te, 885 S.W.2d 364, 365 (Tenn. Crim. App. 19 94); State v. Hallock, 875 S.W .2d 285, 294 (Tenn. Crim. App. 1993); State v. Rodney Corley, No. 01C01-9608-CR-00336, 1997 W L 535315, at *2 (Tenn. Crim. App., Nashville, Sept. 2, 1997), perm. to appeal denied (Tenn. 1998); Kenn eth Cu lp v. State, No. 02C01-9608-CC-00268, 1997 WL 414397, at *2-*3 (Tenn. Crim. A pp., Jack son, July 2 4, 1997 ); Terry Sha nnon Kim ery v. State, -9- No. 03C0 1-9512 -CC-0 0412, 1 997 W L 3114 3, at *4-*5 (T enn. C rim. App ., Knoxville, Ja n. 28, 199 7), perm. to appeal denied (Tenn . 1997).

V. JUDGMENT OF ACQUITTAL Finally, Defendant argue s that his co unsel w ere ineffec tive for failing to move for a judgm ent of acq uittal at the clo se of the S tate’s proo f. The po st- conviction court fo und th at “[i]n ligh t of the e videnc e at trial, petitioner suffered no prejudice” by counsel’s action . In add ition, the court s tated, “T here w as am ple evidence to support a finding petitioner killed the victim in a malicious, premed itated, and delibera te fashion.”

In order to conclude that Defendant suffered ineffective assistance of counsel due to a failure by co unsel to mo ve for judgme nt of acquittal, this Court must find that the evidence was not sufficient to sup port the jury’s ve rdict. T his we decline to do, because the issue has been previous ly determ ined. See State v. Ricky Sum mers, No. 85-328-III, 1987 WL 16 398, at *4-*7 (Tenn . Crim. A pp., Nash ville, Sept. 4, 1 987). T his issue lacks m erit.

Because we conclude that none of Defendant’s issues require reversal of his conviction, we affirm the judgment of the trial court dismissing his petition for post-co nviction relief.

____________________________________ DAVID H. WELLES, JUDGE

-10- CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

-11-