Orlando Crenshaw v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 11, 2004 Session

ORLANDO CRENSHAW v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lawrence County
No. 23646 Stella Hargrove, Judge

No. M2004-00045-CCA-R3-CD - Filed December 16, 2004

The petitioner, Orlando Crenshaw, convicted of attempted first degree murder, appeals the post-
conviction court's denial of his petition for relief. He asserts that (1) the trial court erred by
failing to provide jury instructions on the appropriate lesser included offenses and that his
counsel was ineffective for failing to raise the issue on direct appeal; (2) that the trial court erred
by failing to comply with the requirements of Momon v. State, 18 S.W.3d 152 (Tenn. 1999), and
that his trial counsel was ineffective for failing to adequately prepare him to testify at trial; (3)
that the state failed to prove that the offense occurred before the return of the indictment; (4) that
the state engaged in prosecutorial misconduct by using false statements to secure the indictment
and soliciting false testimony at trial; (5) that the trial court erred by providing a misleading jury
instruction on the issue of criminal responsibility and that his counsel was ineffective for failing
to present the issue as a ground for relief on direct appeal; (6) that the trial court erred by failing
to provide a limiting instruction with regard to certain of the evidence; (7) that he was denied the
right to a fair trial because the same jury pool used in the trial of his co-defendant was used for
his trial and that his counsel was ineffective for failing to object to the jury pool; (8) that he was
denied the right to a fair trial because of a violation of Brady v. Maryland, 373 U.S. 83 (1963);
and (9) that the state denied his right to a fair trial by utilizing mutually exclusive theories in his
trial and that of his co-defendant. For the reasons set forth in this opinion, the judgment of the
post-conviction court is reversed, the conviction is set aside, and the cause is remanded for a new
trial.

Tenn. R. App. P. 3; Judgment of the Trial Court Reversed and Remanded

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.

William J. Eledge, Lawrenceburg, Tennessee, for the appellant, Orlando Crenshaw.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney
General; and Jim White, Assistant District Attorney General, for the appellee, State of
Tennessee.

1
 OPINION

On September 1, 1999, the petitioner was convicted of attempted first degree murder
related to the shooting and beating of Angelo Wilson, a confidential informant for the police.
The trial court imposed a Range I sentence of twenty-five years and a $40,000 fine. This court
affirmed on direct appeal. State v. Crenshaw, 64 S.W.3d 374 (Tenn. Crim. App. 2001).

The opinion of this court on direct appeal summarized the pertinent facts. At trial, the
victim testified that he had bought drugs from the petitioner while working as a paid confidential
informant and that the transactions were recorded on audiotape. The petitioner was charged with
drug offenses as a result of the recorded purchases. As a part of the pretrial discovery process,
the petitioner received copies of the tape recordings. The victim stated that he heard the
petitioner remark that if he found out the identity of the informant, he would either kill him or
have him killed. Later, a copy of an audiotape featuring the victim buying drugs from the
petitioner was sent to the victim's residence.

On September 9, 1998, the victim encountered his friend, Butch Osepczuk, and asked
Osepczuk for a ride to work. Osepczuk then telephoned Terry Polidoro, who agreed to transport
the victim to his place of employment. Along the way, Polidoro stopped the car, told the victim
that he and Osepczuk had to "make a deal," and asked the victim to wait beside the road. The
two men then drove away in the car. When they returned in the car, Osepczuk said, "Come on.
Let's go. We're ready." Id at 379. As the victim approached the car, however, Osepczuk began
to shoot, striking the victim in his right leg. When the victim ran into a soybean field, he fell and
Osepczuk and Polidoro, who had followed him, beat him. According to the victim, Osepczuk hit
him in the head with a long gun and Polidoro struck him with a board. It was only when the
victim pretended to be dead that his assailants left. The victim, whose injuries included seven
gunshot wounds and various other injuries from being struck with the gun and the board, was
able to summon help from a nearby residence.

Telephone records established that on the date of the offense, a telephone call was placed
from the motel where Osepczuk was staying to the residence of the petitioner's aunt. On the day
following the offense, the petitioner met with Osepczuk at the residence of Jennie Douglas. At
12:13 p.m. that day, a telephone call was placed to the petitioner's residence from the residence
of Genevieve Smith. Osepczuk was arrested at Ms. Smith's residence two hours later.

Daniel Freemon, an attorney who represented the petitioner on the drug charges, was
called as a witness at trial to establish that he had delivered copies of the audiotape recordings to
the petitioner three months before the offense. Stephen R. Perry, Osepczuk's stepfather, testified
that the petitioner told him that he had identified the victim's voice on the audiotapes and asked
him if he knew someone "who would take care of the victim." Id at 381. Gary Claude White
revealed that the petitioner offered him $10,000 to murder the victim, explaining that the victim
was an undercover agent. White admitted, however, that he had given conflicting statements to
the police as to when the petitioner made the offer.

2
 The petitioner filed a timely petition for post-conviction relief alleging that the trial court
erred by failing to instruct on certain lesser included offenses, that the prosecution failed to
prove that the offense occurred before the return of the indictment, that the prosecution solicited
and presented false testimony at trial, that the trial court's instruction on criminal responsibility
was misleading, that the trial court failed to provide a necessary limiting instruction, that trial
counsel unilaterally denied him the right to testify, and that he had been denied the effective
assistance of counsel. The post-conviction court appointed counsel and the petition was
amended to include additional grounds for relief: that the petitioner was denied the right to a fair
and impartial jury, that the state violated the requirements of Brady, that the state violated his
right to a fair trial by utilizing "mutually exclusive" theories at his trial and at Osepczuk's trial,
and that the state violated the petitioner's right to a fair trial by using false testimony to secure
the indictment.

At the evidentiary hearing on the petition for post-conviction relief, trial counsel testified
that he met with the petitioner, who was in jail, approximately six times prior to trial. Trial
counsel recalled that he had asked the trial court to instruct the jury on the lesser included
offenses of facilitation of attempted first degree murder, attempted second degree murder,
facilitation of attempted second degree murder, aggravated assault, and facilitation of aggravated
assault. He testified that the trial court instructed only on facilitation of attempted first degree
murder as a lesser included offense. Trial counsel remembered that Ben Jordan, the boyfriend of
the victim's mother, took an audiotape from his pocket while testifying at trial but the recorded
contents were never played to the jury and the tape was not admitted into evidence. Trial
counsel explained that he did not ask for a limiting instruction because the contents of the tape
were not disclosed to the jury and because "a limiting instruction can be an exclamation point."
He was unable to remember whether the trial court provided a limiting instruction with regard to
testimony about the defendant's history of illegal drug activity.

Trial counsel recalled that after several hours of deliberations, the jury reported that they
were deadlocked at eleven to one. The trial court allowed the jury to break for the evening,
directing them to return the next morning to deliberate further. Trial counsel acknowledged that
the trial court had incorrectly instructed the jury that the state was only required to prove by a
preponderance of the evidence that the crime occurred before the return of the indictment. He
contended, however, that the date of the crime was not an issue at trial, implying that the mistake
was inconsequential. Trial counsel explained that while the same jury pool was used for both the
petitioner's and Osepczuk's trials, none of the jurors who served on Osepczuk's panel were called
for jury selection in the petitioner's case. During cross-examination, trial counsel testified that
even though the state had an open file discovery policy, the tape produced by Jordan was not
provided to him prior to trial.

TBI Agent Wayne Wesson, who presented the case against the petitioner to the grand
jury, testified that he interviewed Attorney Freemon, who had represented the petitioner in his
drug cases. He recalled that Freemon gave him a written history of the petitioner's cases, which
indicated that the petitioner had received an audiotape recording of the drug transaction on June
3, 1998, and had returned the tape to Freemon on the following day. Agent Wesson confirmed
that Stephen Perry gave a statement to the police indicating that the petitioner had shown him an

3
audiotape in March or April of 1998, several months before the shooting. Agent Wesson
recalled that Perry could not recall the exact month that he had seen the tape in the petitioner's
possession. The officer testified that when he presented the case to the grand jury, he did not
refer to any dates and simply stated that he had talked to three witnesses, each of whom had been
asked by the petitioner to "take care of" the victim. All three of the witnesses testified at the
petitioner's trial. During cross-examination, Agent Wesson testified that he had not directly
participated in the investigation of the drug cases involving the petitioner.

The petitioner testified that he was not informed by his counsel of either the trial strategy
or any proposed jury instructions. He complained that he received no help from his counsel in
preparation for his trial testimony. The petitioner stated that at the time of his trial, he had not
been convicted of any felony offenses or any crimes involving dishonesty but was nevertheless
not called as a witness. He also pointed out that he was not asked to waive his right to testify.
The petitioner complained that the indictment was not read to the jury and claimed that none of
the witnesses testified that the crime occurred before the return of the indictment. He insisted
that the state knowingly solicited false testimony when it allowed Stephen Perry to testify that
the petitioner had approached him with a tape in March or April when the state was fully aware
that the petitioner had not received the tapes from Attorney Freemon until June of the same year.
The petitioner also complained that while his trial counsel asked the trial court to give a limiting
instruction as to his role in the drug offenses, no instruction was given.

In an extensive order, the post-conviction court denied relief, concluding that there were
instructions on the appropriate lesser included offenses and that trial counsel's failure to raise the
issue on direct appeal was a "tactical trial maneuver." As to the petitioner's claim that his trial
counsel failed to prepare him to testify at trial, the post-conviction court ruled that both trial
counsel and the petitioner were "well prepared for trial." The post-conviction court also found
that the petitioner had waived any claim that the state failed to prove that the crime occurred
before the finding of the indictment or that the indictment was not read to the jury by failing to
present these issues on direct appeal. The post-conviction court concluded that "no false
testimony was solicited by the State from Steve Perry, either at trial, or relative to the grand jury
presentment." With regard to the petitioner's complaint that the criminal responsibility
instruction was misleading, the post-conviction court denied relief, observing that it had charged
the pattern instruction and that the "appropriate [jury] instructions" were provided. The post-
conviction court also observed that even though the same jury venire was used for the trials of
the petitioner and Osepczuk, different panels were called for each trial. The court ruled that the
state had not used mutually exclusive theories in the separate trials of the petitioner and
Osepczuk and concluded that the petitioner was not denied the effective assistance of counsel.

In this appeal, the petitioner asserts that the trial court erred by failing to provide jury
instructions on the appropriate lesser included offenses, by giving a misleading instruction on
criminal responsibility, and by failing to provide a limiting instruction with regard to testimony
about the his prior drug involvement. He also asserts that the state failed to prove that the
offense occurred before the return of the indictment, engaged in prosecutorial misconduct by
using false statements to secure the indictment, denied his right to a fair trial by utilizing
mutually exclusive theories in the trials of him and his co-defendant, and violated the

4
requirements of Brady by withholding exculpatory evidence. The petitioner further contends
that he was denied the right to a fair trial because of a mixing of the jury pools and argues that he
was denied the effective assistance of counsel.

Under our statutory law, the petitioner bears the burden of proving the allegations in his
post-conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f)
(2003). Evidence is clear and convincing when there is no serious or substantial doubt about the
accuracy of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998). On appeal, 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. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on
the petitioner to show that the evidence preponderated against those findings. Clenny v. State,
576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility of the witnesses and the weight and
value to be afforded their testimony are questions to be resolved by the post-conviction court.
Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App. 1997).

I
The petitioner first asserts that the trial court erred by failing to provide instructions to
the jury on the appropriate lesser included offenses. He contends that the trial court should have
charged attempted second degree murder, facilitation of attempted second degree murder,
reckless endangerment, facilitation of reckless endangerment, and solicitation of first degree
murder. The state submits that waiver applies because the petitioner failed to present the issue as
a ground for relief on direct appeal.

Tennessee Code Annotated section 40-30-106 provides, in pertinent part, as follows:
(g) A ground for relief is waived if the petitioner personally or through an
attorney failed to present it for determination in any proceeding before a court of
competent jurisdiction in which the ground could have been presented unless:
(1) The claim for relief is based upon a constitutional right not recognized
as existing at the time of trial if either the federal or state constitution requires
retroactive application of that right; or
(2) The failure to present the ground was the result of state action in
violation of the federal or state constitution.
Tenn. Code Ann. ' 40-30-106(g) (2003).

Because the petitioner did not, in fact, cite the issue in his motion for new trial and failed
to present the issue on direct appeal, waiver applies. See id.; see also Tenn. R. App. P. 3; State
v. Coldwell, 671 S.W.2d 459, 465 (Tenn. 1998).

In a related claim, the petitioner asserts that his trial counsel was ineffective by failing to
challenge the trial court's failure to instruct on the lesser included offenses in a motion for new
trial or on direct appeal. The state contends that trial counsel's failure to challenge the ruling of
the trial court qualifies as a tactical decision. In the alternative, the state submits that because
the failure to instruct on the suggested lesser included offenses was harmless beyond a
reasonable doubt, the petitioner is not entitled to relief.

5
 Trial counsel testified that he filed a written request seeking instructions on facilitation of
attempted first degree murder, attempted second degree murder, and aggravated assault. While
counsel could not recall if he had "followed-up" on his written request, he did remember that the
only lesser included offense charged to the jury was facilitation of attempted first degree murder.
Trial counsel was not questioned about his failure to present the issue in either the motion for
new trial or on direct appeal.

The post-conviction court denied relief, observing that "trial counsel was satisfied with
[the single] lesser offense." The court characterized trial counsel's failure to challenge the
propriety of the instructions as a "tactical trial maneuver." The post-conviction court also ruled
that the "evidence . . . was overwhelming as to the solicitation, planning and premeditation of the
murder of [the victim], the informant in Petitioner's multiple drug cases-resulting in grave, life-
threatening injuries to [the victim], when he was shot numerous times, beaten and clearly left for
dead in a soybean field."

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below "the
range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse
effect on the defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be
so serious as to render an unreliable result. Id. at 687. It is not necessary, however, that absent
the deficiency, the trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail
to establish either factor, he is not entitled to relief. Our supreme court described the standard of
review as follows:

Because a petitioner must establish both prongs of the test, a failure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on
the ineffective assistance claim. Indeed, a court need not address the components
in any particular order or even address both if the defendant makes an insufficient
showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit
of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of
counsel, however, applies only if the choices are made after adequate preparation for the case.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Claims of ineffective assistance of counsel are regarded as mixed questions of law and
fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court's factual
findings, our review is de novo, and the post-conviction court's conclusions of law are given no

6
presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

In order to prevail on his claim that trial counsel was ineffective for failing to cite as error
the trial court's failure to provide an instruction on the lesser included offenses of attempted
second degree murder, facilitation of attempted second degree murder, aggravated assault,
facilitation of aggravated assault, and solicitation of first degree murder, the petitioner must not
only establish that his counsel was deficient by failing to present the issue but he must also
demonstrate that he was prejudiced as a result. To establish that he was prejudiced by the
omission of the lesser included issue on appeal, the petitioner must show that there is a
reasonable probability that the result of his direct appeal would have been different had counsel
argued that the failure to instruct on the lesser included offenses was erroneous. In other words,
he must establish that this court would likely have reversed his conviction in the original appeal
and remanded for a new trial.

The initial inquiry is whether the trial court erred by failing to instruct the jury on other
lesser included offenses. Whether a given offense should be submitted to the jury as a lesser
included offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424, 427 (Tenn.
2001) (citing State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed
questions of law and fact is de novo with no presumption of correctness. Id.; see also State v.
Burns, 6 S.W.3d 461. The trial court has a duty "to give a complete charge of the law applicable
to the facts of a case." State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R.
Crim. P. 30.

The trial court has a duty to instruct the jury as to a lesser included offense if: (1)
Reasonable minds could accept the offense as lesser included; and (2) the evidence is legally
sufficient to support a conviction for the lesser included offense. Burns, 6 S.W.3d at 469; see
also State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999). Moreover, our supreme court has
held that trial courts "must provide an instruction on a lesser-included offense supported by the
evidence even if such instruction is not consistent with the theory of the State or of the defense.
The evidence, not the parties, controls whether an instruction is required." State v. Allen, 69
S.W.3d 181, 188 (Tenn. 2002). Our high court observed that the "jury is not required to believe
any evidence offered by the State," and held that the authority of the jury to convict on a lesser
included offense may not be taken away, even when proof supporting the element distinguishing
the greater offense from the lesser offense is uncontroverted. Id. at 189.

In Burns, our supreme court adopted a modified version of the Model Penal Code in
order to determine what constitutes a lesser included offense:
An offense is a lesser included offense if:
(a) all of its statutory elements are included within the statutory elements of the
offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a
statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or

7
 (2) a less serious harm or risk of harm to the same person, property or public
interest, or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the
definition of lesser included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets
the definition of lesser included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets
the definition of lesser included offense in part (a) or (b).
6 S.W.3d at 466-67.

Under part (a) of the Burns test, attempted second degree murder would be a lesser
included offense of attempted first degree murder. Under part (c), facilitation of attempted
second degree murder would be a lesser included offense of attempted first degree murder. Id.
With regard to aggravated assault, however, our courts have repeatedly held that aggravated
assault is not a lesser included offense of attempted first degree murder. See State v. Trusty, 919
S.W.2d 305, 311-312 (Tenn. 1996), overruled on other grounds by State v. Dominy, 6 S.W.3d
472, 475 (Tenn. 1999); see also Randall Carver v. State, No. M2002-02891-CCA-R3-CO (Tenn.
Crim. App., at Nashville, May 16, 2003); State v. Mario C. Estrada, No.
M2002-00585-CCA-R3-CD (Tenn. Crim. App., at Nashville, Mar. 14, 2003), perm. app.
granted, No. M2002-00585-SC-R11-CD (Tenn. June 30, 2003); State v. Renne Efren Arellano,
No. M2002-00380-CCA-R3-CD (Tenn. Crim. App., at Nashville, Feb. 26, 2003), perm. app.
granted, No. M2002-00380-SC-R11-CD (Tenn. June 30, 2003); State v. Randall White, No.
M2000-01492-CCA-R3-CD (Tenn. Crim. App., at Nashville, Mar. 27, 2002); State v. Joshua
Lee Williams, No. W2000-01435-CCA-R3-CD (Tenn. Crim. App., at Jackson, June 27, 2001);
State v. Christopher Todd Brown, No. M1999-00691-CCA-R3-CD (Tenn. Crim. App., at
Nashville, Mar. 9, 2000). Similarly, facilitation of aggravated assault would not be a lesser
included offense of attempted first degree murder.

The defendant also contends that the trial court should have instructed on solicitation of
first degree murder as a lesser included offense of attempted first degree murder. Under part (c)
of Burns, solicitation "to commit the charged offense or any lesser included offense" is generally
recognized as a lesser included offense. Here, however, the charged offense was attempted first
degree murder. To determine whether solicitation of first degree murder is a lesser included
offense of attempted first degree murder, an examination of the relevant statutory definitions is
necessary.

In this case, the defendant was convicted of attempted first degree murder under a theory
that he was criminally responsible for the conduct of Osepczuk and Polidoro. As it applies to
these circumstances, Tennessee Code Annotated section 39-11-402 provides that "[a] person is
criminally responsible for an offense committed by the conduct of another if . . . [a]cting with
intent to promote or assist the commission of the offense, or to benefit in the proceeds or results
of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense." Tenn. Code Ann. § 39-11-402(a)(2). Attempt is defined as follows:

8
 (a) A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute
an offense if the circumstances surrounding the conduct were as the person
believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the person's
part; or
(3) Acts with intent to complete a course of action or cause a result that
would constitute the offense, under the circumstances surrounding the conduct as
the person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.
Tenn. Code Ann. § 39-12-101(a). As to solicitation, our code provides that
Whoever, by means of oral, written or electronic communication, directly
or through another, intentionally commands, requests or hires another to commit a
criminal offense, or attempts to command, request or hire another to commit a
criminal offense, with the intent that the criminal offense be committed, is guilty
of the offense of solicitation.
Tenn. Code Ann. § 39-12-102(a). The evidence will support a conviction under a theory of
criminal responsibility if it establishes the defendant solicits another to commit the offense. See
Tenn. Code Ann. § 39-11-402(a)(2). Under these circumstances, solicitation of first degree
murder is a lesser included offense of attempted first degree murder.

The fact that dual convictions for solicitation of first degree murder and attempted first
degree murder are prohibited by statute supports our conclusion. See Tenn. Code Ann. § 39-12-
106(a). Finally, our legislature has provided for a less severe punishment for solicitation of first
degree murder, which is designated a Class B felony while attempted first degree murder is
designated a Class A felony. See Tenn. Code Ann. § 39-11-117. In State v. Kathy Ball, No.
03C01-9512-CC-00387 (Tenn. Crim. App., at Knoxville, Oct. 31, 1997), this court ruled that
"[t]his statutory classification demonstrates that solicitation of first degree murder is a lesser
grade or class of attempted first degree murder." While Ball was decided prior to Burns, the
reasoning is applicable.

Our next inquiry is whether the evidence in this case warranted instructions on
solicitation of first degree murder, attempted second degree murder, and facilitation of attempted
second degree murder. The proof at trial established that the petitioner had been charged with a
number of drug offenses as a result of purchases made by the victim, who was acting as a
confidential informant. The petitioner received copies of the audiotapes of the transactions in
the discovery process of the drug cases. He played the tapes for several individuals, and
expressed a desire to have the victim "taken care of." Telephone records showed that the
petitioner was in contact with Osepczuk both before and after Osepczuk and Polidoro shot the
victim, beat him, and left him for dead. The petitioner's defense was that he had not participated
in the crimes.

9
 The proof at trial was that Osepczuk and Polidoro attacked the victim at the petitioner's
request. Thus, an instruction on solicitation of first degree murder was warranted. Because
attempted second degree murder is a lesser included offense under part (a) of the Burns test, the
proof of the greater offense necessarily proved the lesser offense. In consequence, an instruction
on attempted second degree murder would have been appropriate. With regard to facilitation of
attempted second degree murder, the jury could have determined from the evidence that the
petitioner provided no more than "substantial assistance," in the words of the statute, to
Osepczuk and Polidoro in the attempt on the victim's life.

Because the proof at trial justified instructions on solicitation of first degree murder,
attempted second degree murder, and facilitation of attempted second degree murder, it is our
view that the trial court should have instructed the jury on those offenses. Counsel candidly
admitted that although he filed a written request seeking instructions on the lesser included
offenses, he failed to follow up on the request. He failed to make any objection to the jury
instructions. There was simply no proof that trial counsel chose not to raise the issue for tactical
reasons. In our view, there was no reasonable explanation for the omission. In that regard, the
evidence preponderates against the finding of the trial court. The failure of trial counsel to
present the issue in the motion for new trial or on direct appeal qualifies as a deficiency in
performance.

Our next inquiry is whether the oversight can be classified as harmless error. If so, then
the failure of the petitioner's counsel to present the issue on direct appeal did not result in any
prejudice. In Allen, our high court concluded that when the trial court improperly fails to
instruct on a lesser included offense, the error is constitutional in nature, based upon the
fundamental right to a jury. The inquiry is the same as for other constitutional errors: whether it
appears beyond a reasonable doubt that the error did not affect the outcome of the trial. Allen,
69 S.W.3d at 191. In making this determination, "a reviewing court should conduct a thorough
examination of the record, including the evidence presented at trial, the defendant's theory of
defense, and the verdict returned by the jury." Id.

As indicated, the petitioner was convicted of attempted first degree murder. His defense
was that he was not involved in the crime at all. That the petitioner had asked others to "take
care of" the victim and had spoken with Osepczuk immediately before and after the crime was
circumstantial evidence of his guilt. In addition, there was proof that the petitioner had offered
Gary White $10,000 to "do the victim in." Because the evidence established that Osepczuk and
Polidoro, after a discussion with the petitioner, drove the victim into a secluded area, attacked
and shot him, and stopped only when he pretended to be dead, it is our view the evidence of
premeditation was so overwhelming that the trial court's failure to instruct on the offenses of
attempted second degree murder and facilitation of attempted second degree murder, even
though erroneous, can be classified as harmless beyond a reasonable doubt. See State v.
Richmond, 90 S.W.3d 648, 662 (Tenn. 2002). In consequence, the petitioner has failed to
establish that he was prejudiced by trial counsel's failure to present the issue as a ground for
relief on appeal.

10
 The same cannot be said with regard to the trial court's failure to provide an instruction
on solicitation of first degree murder. The post-conviction court observed that the "evidence in
the case was overwhelming as to the solicitation, planning and premeditation of the murder of
[the victim]." The state's theory, which was supported entirely by circumstantial proof, was that
the petitioner asked Osepczuk and Polidoro to kill the victim. Under these circumstances, a
properly instructed jury would likely have convicted the petitioner of solicitation of first degree
murder. See Richmond, 90 S.W.3d at 662. The failure to instruct on that offense cannot,
therefore, be classified as harmless beyond a reasonable doubt. See id.; Allen, 69 S.W.3d at 191.

In State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991), this court
observed that the petitioner need not establish that, absent the deficiency in counsel's
performance, he would have been acquitted. We held that "[a] reasonable probability of being
found guilty of a lesser charge, or a shorter sentence, satisfies the second prong in Strickland."
Id. Because the trial court's failure to instruct on solicitation of first degree murder was not
harmless beyond a reasonable doubt, the petitioner has established that he was prejudiced by his
counsel's failure to present the issue in a motion for new trial and on direct appeal. He is,
therefore, entitled to a new trial. The judgment of the post-conviction court is reversed, the
conviction is set aside, and the cause is remanded for a new trial.

II
The petitioner next contends that his trial counsel was ineffective for failing to
adequately prepare him to testify at trial. He also asserts that the trial court committed reversible
error by failing to comply with the requirements of Momon v. State, 18 S.W.3d 152, 157 (Tenn.
1999). The state submits that trial counsel was not deficient and that the ruling in Momon does
not apply because the petitioner's trial occurred prior to that decision.

As indicated, the petitioner bears the burden of proving his claim by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). To prevail on a claim of ineffective
assistance of counsel, the petitioner must establish that his trial counsel's performance was
deficient and that, but for the deficiency, the outcome of his trial would have been different. See
Strickland, 466 U.S. at 693.

The petitioner complained that he met with trial counsel only five or six times prior to
trial and that they never discussed his right to testify. He pointed out that he had no prior
convictions that could have been used to impeach his testimony. The petitioner did not contend
that trial counsel deprived him of the right to testify or that he wanted to testify at trial.
Although trial counsel confirmed that he met with the petitioner five or six times prior to the
trial, he was not otherwise questioned during the post-conviction hearing about the petitioner's
failure to testify at his trial.

After observing that trial counsel was afforded open file discovery by the state, the post-
conviction court determined that trial counsel was thoroughly prepared for trial and that he had
adequately prepared the petitioner for trial. It found that trial counsel met with the petitioner a
sufficient number of times and that he acquired other information from Agent Wesson and
Attorney Freemon, the petitioner's attorney in the drug cases. The post-conviction court

11
concluded that because the trial in this case predated the ruling in Momon, that ruling did not
apply to the petitioner.

It is well established that a criminal defendant has a constitutional right to give testimony
under both the state and federal constitutions. See Momon, 18 S.W.3d at 157. Article I, section
9 of the Tennessee Constitution has been interpreted to require that Ain all criminal prosecutions
the accused has the right to testify as a witness in his own behalf and to be represented by
counsel.@ Id. (citing State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976)). In Rock v.
Arkansas, 483 U.S. 44, 50 (1987), the United States Supreme Court declared that the right of a
criminal defendant to testify in his own behalf was essential to the due process of law. Because
the right to testify is fundamental, it may only be waived by the defendant. Momon, 18 S.W.3d
at 161 (citing Jones v. Barnes, 463 U.S. 745 (1983); State v. Blackmon, 984 S.W.2d 589, 591
(Tenn. 1998); Vermilye v. State, 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987)). Prior to our
supreme court's holding in Momon, a petitioner's claim that his counsel prevented him from
testifying in his own behalf was treated like any other ground asserted for a claim of ineffective
assistance of counsel. See, e.g., Shone King v. State, No. 01C01-9709-CR-00408 (Tenn. Crim.
App., at Nashville, Dec. 30, 1998).

In our view, the petitioner has failed to establish by clear and convincing evidence that
his trial counsel did not adequately prepare him to testify. Notably, the petitioner did not claim
at the evidentiary hearing that he wanted to testify at trial and was denied the right to do so by
his trial counsel. He also did not suggest what trial counsel should have done differently during
his trial preparation. Further, trial counsel was not questioned at all as to the reasons the
petitioner was not offered as a witness at trial. Under these circumstances, the petitioner is not
entitled to relief on this ground.

In a related complaint, the petitioner contends that the trial court failed to comply with
the requirements of Momon v. State. In Momon, our supreme court held that as a procedural
safeguard, the waiver of the defendant's right to testify should be attained through a voir dire of
the defendant in open court. 18 S.W.3d at 162. Our high court observed, however, that "neither
the right to testify discussed herein, nor the procedural protections adopted to preserve that right
are new constitutional rules which must be retroactively applied." Id. at 162-63. Moreover, our
high court stated that the safeguards announced in Momon were prophylactic in nature and not
constitutionally required. Id. The petitioner's trial occurred in September of 1999, two months
before our supreme court's decision in Momon. Because a voir dire of the defendant regarding
his waiver of the right to testify was not required at that time, the petitioner is not entitled to
relief on this ground.

III
Next, the petitioner contends that the state failed to prove that the offense occurred before
the return of the indictment. He also complains that the indictment was not read to the jury. The
state submits that because the petitioner failed to present the issue as a ground for relief on direct
appeal, waiver applies.

12
 As indicated, Tennessee Code Annotated section 40-30-106 provides, in pertinent part, as
follows:
(g) A ground for relief is waived if the petitioner personally or through an
attorney failed to present it for determination in any proceeding before a court of
competent jurisdiction in which the ground could have been presented unless:
(1) The claim for relief is based upon a constitutional right not recognized
as existing at the time of trial if either the federal or state constitution requires
retroactive application of that right; or
(2) The failure to present the ground was the result of state action in
violation of the federal or state constitution.
Tenn. Code Ann. ' 40-30-106(g) (2003). Here, the petitioner argues that the post-conviction
court should have granted relief because the state failed to prove that the offense occurred before
the return of the indictment and that the indictment was not read to the jury. Neither claim is
based upon a new constitutional right. Nor was the failure to timely present the issue the result
of state action. The claims could have been presented on direct appeal. Because the petitioner
did not cite the issues in his motion for new trial and failed to present the issues on direct appeal,
waiver applies. See id.; see also Tenn. R. App. P. 3; Coldwell, 671 S.W.2d at 465.

Moreover, the petitioner is not entitled to relief on the merits of the issue. Trial counsel
testified that he could not remember if any witness was specifically asked whether the offense
occurred before the return of the indictment. His notes indicated that the indictment was read to
the jury but he had no specific recollection of the reading. The petitioner testified that the
indictment was not read to the jury and he could not remember whether any witness was asked
whether the offense occurred before the return of the indictment.

With regard to the petitioner's claim that the state failed to prove that the offense
occurred before the indictment, the post-conviction court ruled that the issue had been waived.
With regard to his claim that the indictment was not read to the jury, the court concluded that the
claim was "utterly absurd," observing that the petitioner did not have the entire trial transcript.

Tennessee Code Annotated section 39-11-201 provides that the state must prove beyond
a reasonable doubt that the "offense was committed prior to the return of the formal charge."
Tenn. Code Ann. ' 39-11-201(a)(4). In State v. Brown, 53 S.W.3d 264, 279 (Tenn. Crim. App.
2000), this court made the following observations with regard to this requirement:

Granted, this is an easy matter to prove. . . . [The] reading of the indictment to the
jury, coupled with evidence of when the offense was committed, would establish
that the offense was committed prior to the return of the indictment. Also, the
State could merely ask an appropriate witness whether the actions of the
defendant constituting the offense occurred before the defendant was charged
with that offense. This would satisfy the requirements of the statute as well.

This court concluded that while it was "obvious" the crimes were committed before the
defendant was indicted, reversal was required because there was "no evidence that the

13
indictment was ever read to the jury or shown to the jury, and no witness was asked whether the
offense occurred prior to the return of the indictment." Id. at 279-280.

Initially, the post-conviction court correctly observed that the transcript offered as an
exhibit at the evidentiary hearing is not a record of the entire trial. The record offered by post-
conviction counsel consists of two abstracts from the original trial transcript. The abstracts
contain only the voir dire of the jury pool, the jury instructions, and the return of the verdict.
Without the entire transcript, adequate review of this issue is impossible. It is the duty of the
appellant to prepare a record which conveys a fair, accurate, and complete account of what
transpired in the trial court with respect to the issues which form the basis of the appeal. Tenn.
R. App. P. 24(b); Groseclose v. State, 615 S.W.2d 142 (Tenn. 1983); State v. Miller, 737 S.W.2d
556, 558 (Tenn. Crim. App. 1987). In the absence of an adequate record on appeal, this court
must presume that the rulings of the post-conviction court were correct. State v. Keen, 996
S.W.2d 842 (Tenn. Crim. App. 1999); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim.
App. 1979). Similarly, the transcript submitted on direct appeal does not include a transcription
of the proceedings conducted on the first day of the petitioner's trial, noting that that portion of
the trial "was not requested and is not a part of this transcript."1 The transcript begins with the
proceedings from the second day of trial. Because the record does not affirmatively indicate
otherwise, our duty is to presume that the evidence does not preponderate against the findings of
the post-conviction court. See Murff v. State, 221 Tenn. 111, 425 S.W.2d 286, 289 (1968)
("[E]very presumption must be in favor of the regularity of the proceedings and the validity of
the orders and judgment in the lower court, except where the record affirmatively shows
otherwise.").

IV
The petitioner next asserts that the state engaged in prosecutorial misconduct by
knowingly soliciting testimony at trial that it knew to be false and by failing to correct the
information. He also contends that the state engaged in prosecutorial misconduct by using
materially false information to obtain the indictment in this case. Other than citing the ruling of
the post-conviction court, the state has failed to specifically address this claim.

The petitioner's claim that the state solicited testimony it knew to be false is based upon
the testimony of Stephen Perry. At the evidentiary hearing, Agent Wesson testified that he took
a statement from Perry approximately one week after the offense. In the statement, Perry
indicated that in March or April of 1998, he had spoken with the petitioner about the audiotapes
the petitioner had received during the discovery process in his drug cases. Perry provided
virtually identical testimony at trial. Attorney Freemon provided a statement to Agent Wesson
wherein he indicated that the audiotapes were not given to the petitioner until June of 1998. He
also gave Agent Wesson a document prepared during his representation of the petitioner which
corroborated that date. In this appeal, the petitioner asserts that because Attorney Freemon
indicated that the petitioner did not receive the tapes until June, Perry's assertion that he had

1
Although the transcript of the trial is not included in the record on appeal, this court may take judicial
notice of its own records on file. See Tenn. R. App. P. 13(c); James William Dash v. Howard W . Carlton, W arden,
No. E2001-02867-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Sept. 11, 2002).
14
spoken to the petitioner about the tapes in March or April was false and that the state had a duty
to "correct" Perry's testimony.

In State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993), this court held that
"it is a well-established principle of law that the state's knowing use of false testimony to convict
an accused is violative of the right to a fair and impartial trial." "When a state witness answers
questions on either direct or cross examination falsely, the district attorney general, or his
assistant, has an affirmative duty to correct the false testimony." Id. (citing Giglio v. United
States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959); Blanton v. Blackburn, 494
F. Supp. 895, 900 (M.D. La. 1980); Hall v. State, 650 P.2d 893, 896 (Okla. Crim. App. 1982)).

In this case, there was a factual discrepancy in the time frames provided by Perry and
Attorney Freemon. This was, in the context of the entire trial, a difference in recollection rather
than false testimony. In the statement he provided to Agent Wesson, Perry stated that he
believed that he had spoken with the petitioner about the tapes in March or April but that he was
unsure of the precise time. At the evidentiary hearing, Agent Wesson reiterated that Perry was
unsure of the exact month in which he had spoken to petitioner but he was certain that it was
prior to the crime. This is not necessarily in conflict with the testimony and documentation
provided by Attorney Freemon, which established that the petitioner received the tapes in June,
some three months prior to the crime. Under these circumstances, the prosecution was under no
duty to correct Perry's testimony. The petitioner is not entitled to relief on this issue.

In a related claim, the petitioner complains that the state used false evidence to obtain the
indictment. The claim is based upon the statement provided to Agent Wesson by Perry. At the
evidentiary hearing, Agent Wesson testified that Perry's statement was not given to the grand
jury. He stated that he made notes from the statement and informed the grand jurors that the
petitioner had spoken to Perry about the tapes and the victim's role in his prosecution.
According to the officer, he did not make any reference to the date on which the conversation
occurred other than saying that it occurred prior to the crime. The post-conviction court
implicitly accredited the testimony of Agent Wesson in its order denying relief. In our view, the
evidence does not preponderate against the post-conviction court's finding that the state did not
use false testimony at trial or during the grand jury proceeding.

V
The petitioner asserts that the trial court erred by providing a misleading criminal
responsibility instruction to the jury. In response, the state argues that waiver applies because
the issue was not presented on direct appeal. See Tenn. Code Ann. § 40-30-106(g) (2003).

The petitioner has failed to cite any authority for his assertion that the instruction was
error. "Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court." Tenn. Ct. Crim. App. R. 10(b);

15
see also Tenn. R. App. P. 27(a)(7); State v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App.
1987). For this reason, the issue has been waived

Moreover, the record establishes that the trial court instructed the jury in accordance with
Tennessee Pattern Jury Instruction 3.01. In State v. Alejandro Rivera, No.
E2002-00491-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Dec. 1, 2003), this court
specifically approved of the content of the charge as given. Further, while the petitioner
correctly points out that the last paragraph of the instruction provided by the trial court did not
make reference to an applicable mental state, the paragraph immediately preceding it does:

The defendant is criminally responsible for an offense
committed by the conduct of another, if, acting with the intent to
promote or assist the commission of the offense, or to benefit in
the proceeds or results of the offense, the defendant solicits,
directs, aids, or attempts to aid another person to commit the
offense.
Notwithstanding waiver, the petitioner is not entitled to relief on this issue.

Although the petitioner also asserts that his trial counsel was ineffective for failing to
object to the instruction at trial and for failing to present it as a ground for relief on direct appeal,
the instruction was an appropriate statement of the law. Trial counsel, therefore, was not
ineffective for failing to lodge an objection.

VI
The petitioner next contends that the trial court erred by failing to give a limiting
instruction regarding his history of selling drugs and claims that an affidavit by juror Martha
Jones establishes that he was prejudiced by the omission. The state argues that the issue was
previously determined and that the petitioner has waived this issue by failing to present it on
direct appeal.

Under the Post-Conviction Procedure Act, a claim which has been previously determined
cannot be a basis for post-conviction relief. See Tenn. Code Ann. § 40-30-106(h) (2003). "A
ground for relief is previously determined if a court of competent jurisdiction has ruled on the
merits after a full and fair hearing." Id.

Trial counsel sought the introduction of Jones' affidavit at the hearing on the motion for
new trial as support for his claim that the jury had been exposed to extraneous prejudicial
information. Crenshaw, 64 S.W.3d at 691. The trial court refused to consider the affidavit and
denied relief. On direct appeal, this court ruled that the affidavit failed to establish that the jury
was exposed to extraneous, prejudicial information. Id. at 693-94. While this ruling does not
qualify as a previous determination of the petitioner's claim that Jones' affidavit is proof that he
was prejudiced by the absence of a limiting instruction regarding his involvement in the sale of
drugs, waiver would nevertheless apply based upon the petitioner's failure to present the issue on
direct appeal of the conviction. See Tenn. Code Ann. § 40-30-106(g) (2003). In addition, the

16
petitioner has waived our consideration of this issue by failing to cite authority and by failing to
include the trial transcript in the record on appeal. See Tenn. R. App. P. 24(b), 27(a)(7).

Further, the petitioner is not entitled to relief on the merits of the issue. The post-
conviction court ruled that the drug charges, and particularly the victim's involvement in the
investigation, were the motive for the attempted murder of the victim. It determined that
testimony regarding the charges was admissible to establish motive. Audiotapes of the drug
transactions confirmed that the victim was working as an informant. As to the petitioner's claim
that the trial court erroneously failed to provide a limiting instruction regarding this testimony,
the post-conviction court ruled that "the appropriate instructions were given."

In our view, evidence of the drug charges against the petitioner was relevant and
admissible to give context to the crime. In State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000),
our supreme court held that "contextual background evidence, which contains proof of other
crimes, wrongs, or acts, may be offered as an 'other purpose' under [Tennessee Rule of
Evidence] 404(b) when exclusion of that evidence would create a chronological or conceptual
void in the presentation of the case and that void would likely result in significant jury confusion
concerning the material issues or evidence in the case." In addition, this evidence was
admissible to establish the petitioner's motive for the offense, a permissible purpose under the
rule. See, e.g., Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980).

The transcript of the trial establishes that during the victim's testimony, the evidence was
admitted to establish motive. The petitioner's trial counsel asked for a limiting instruction but
stated that he "[did not] want it at this point." Trial counsel made no other request for a limiting
instruction and the trial court did not provide one. While a limiting instruction confining the
jury's consideration of this evidence to the permissible purposes would have been helpful, it is
our view that the error, if any, was harmless. As indicated, the evidence was relevant. The
record establishes that the state offered the evidence for a permissible purpose. In addition, the
petitioner has failed to establish that the failure to provide a limiting instruction resulted in
prejudice.

At the evidentiary hearing, the petitioner introduced Jones' affidavit as proof that he had
suffered prejudice as a result of the omission. Initially, the trial court refused to admit the
affidavit at the hearing on the motion for a new trial, explaining that the Tennessee Rules of
Evidence permit the admission of juror affidavits only under limited circumstances, none of
which existed at the time. As indicated, this court ruled on direct appeal that the affidavit failed
to establish that the jury was exposed to extraneous, prejudicial information and was, therefore,
inadmissible. Crenshaw, 64 S.W.3d at 693-94.

Now, the petitioner seeks to use Jones' affidavit to establish that he was prejudiced by the
omission of a limiting instruction. The problem is that the affidavit is not admissible for this
purpose. See Hutchison v. State, 118 S.W.3d 720, 740 (Tenn. Crim. App. 2003). The
admissibility of juror affidavits is governed by Tennessee Rule of Evidence 606, which provides
in pertinent part as follows:

17
 Upon an inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the course of the jury's
deliberations or to the effect of anything upon any juror's mind or emotions as
influencing that juror to assent to or dissent from the verdict or indictment or
concerning the juror's mental processes, except that a juror may testify on the
question of whether extraneous prejudicial information was improperly brought to
the jury's attention, whether any outside influence was improperly brought to bear
upon any juror, or whether the jurors agreed in advance to be bound by a quotient
or gambling verdict without further discussion; nor may a juror's affidavit or
evidence of any statement by the juror concerning a matter about which the juror
would be precluded from testifying be received for these purposes.

Tenn. R. Evid. 606(b). The rule expressly prohibits the introduction of juror affidavits to
establish "the effect of anything upon any juror's mind or emotions as influencing that juror to
assent to or dissent from the verdict or indictment." Id. There are only three exceptions to the
general rule of exclusion: a juror may testify as to (1) whether extraneous prejudicial information
was improperly brought to the jury's attention, (2) whether any outside influence was improperly
brought to bear upon any juror, or (3) whether the jurors agreed in advance to be bound by a
quotient or gambling verdict without further discussion. Id.; see also Caldararo v. Vanderbilt
Univ., 794 S.W.2d 738, 742 (Tenn. Ct. App. 1990). As was already determined by this court on
direct appeal, juror Jones' affidavit is insufficient to establish that the jury was exposed to
extraneous, prejudicial information. Crenshaw, 64 S.W.3d at 693-94. The petitioner does not
allege that outside influence was brought to bear on any juror nor does he claim that the jury
agreed to be bound by a gambling verdict. Instead, he seeks to use the affidavit to prove the
effect that the absence of the limiting instruction had upon the jury; a purpose which is expressly
prohibited. See Henley v. State, 960 S.W.2d 572, 580-81 (Tenn. 1997); State v. Workman, 111
S.W.3d 10, 21 (Tenn. Crim. App. 2002). Under these circumstances, it is our view that the
petitioner is not entitled to relief on this issue.

VII
The petitioner next asserts that he was denied the right to a fair trial because the same
jury pool used in the trial of Osepczuk was utilized for his trial. The state submits that the
petitioner has waived our consideration of this issue by failing to present it as a ground for relief
on direct appeal and by failing to cite authority for his position.

The petitioner does not allege that any of the jurors from Osepczuk's trial, which was
conducted first, were called to serve for the petitioner's trial. He does not assert that the jury
empaneled for his trial did not represent a fair cross-section of the community. See Taylor v.
Louisiana, 419 U.S. 522, 538 (1975); State v. Nelson, 603 S.W.2d 158, 161 (Tenn. Crim. App.
1980). Further, he has offered no proof to establish that he was prejudiced by the procedure used
to select the venire. Finally, he has not alleged any juror bias. See generally Toombs v. State,
197 Tenn. 229, 270 S.W.2d 649, 651 (1954); Durham v. State, 182 Tenn. 577, 188 S.W.2d 555,
557 (1945). The post-conviction court acknowledged that the same jury pool was used for the
trials of both the petitioner and Osepczuk but noted that care was taken to ensure that different
panels were called for each trial. Under these circumstances, the evidence does not preponderate

18
against the ruling of the post-conviction court that the petitioner is not entitled to relief on this
ground.

VIII
The petitioner next contends that the state failed to produce exculpatory evidence as
required under Brady v. Maryland, 373 U.S. 83 (1963). The state argues that the petitioner has
waived the issue by failing to present it on direct appeal and by failing to provide citation to
authorities.

The petitioner's claim relates to the production of an audiotape during the testimony of
state witness Ben Jordan. At trial, Jordan, the boyfriend of the victim's mother, testified that the
petitioner had given him an audiotape and directed him to give it to the victim's mother. Jordan
then removed the tape from his pocket and handed it to the prosecutor. At the post-conviction
hearing, trial counsel testified that he was surprised by the production of the tape and that he had
not been provided a copy of the tape prior to trial. He recalled that the state had granted him
open file discovery and that he had listened to all of the tapes in the possession of the state. Trial
counsel remembered that the trial court sustained his objection to the admission of the tape and
that the tape was not played for the jury. During a break, trial counsel listened to the tape and
utilized its contents during the cross-examination of Jordan. He explained that he did not ask for
a limiting instruction because the tape was not played for the jury.

Agent Wesson testified that during his initial interview with Jordan, Jordan informed him
that the petitioner had given him an audiotape and asked him to give it to the victim's mother.
According to the officer, Jordan indicated that he either did not have the tape or that the tape was
unavailable. Agent Wesson stated that he tried on a second occasion to acquire the tape from
Jordan but was unsuccessful. Agent Wesson explained, however, that there were several tapes
involved in the prosecution of the petitioner's drug cases and that all of the tapes in the state's
possession were provided to Attorney Freemon.

At the evidentiary hearing, the petitioner testified that the jury reacted with surprise when
Jordan produced the tape and that trial counsel "didn't do anything to correct that." He claimed
that the tape might have been helpful to his defense because the content might not have included
his voice. It was the petitioner's belief that the state should have "run into" the tape during the
investigation.

Before this court may find a due process violation under Brady, the following elements
must be established:

1. The defendant must have requested the information (unless the evidence is
obviously exculpatory, in which case the State is bound to release the
information whether requested or not);
2. the State must have suppressed the information;
3. the information must have been favorable to the accused; and
4. the information must have been material.

19
State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearing). In this case, trial
counsel filed a motion for discovery. There is no proof, however, that the state suppressed the
tape. The proof at the evidentiary hearing was that the tape remained in the possession of Jordan
until he testified at the petitioner's trial. Further, there is no indication that the information was
material or that it was favorable to the accused. The petitioner did not offer the tape as an
exhibit at the evidentiary hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990). In our view, the petitioner has failed to establish that the state violated the requirements
of Brady. Similarly, the petitioner has failed to establish that he was prejudiced by trial counsel's
performance with regard to the tape.

IX
As his final issue, the petitioner contends that his right to a fair trial was violated because
the state used mutually exclusive theories and different evidence in his trial and in that of his co-
defendant. The state asserts that the petitioner has waived this issue by failing to present it as a
ground for relief on direct appeal.

Trial counsel testified that the state's theory of the case was that the petitioner solicited
Osepczuk and Polidoro to kill the victim. He stated that he attended Osepczuk's trial and no
mention was made of the petitioner. He recalled that the state did not produce any evidence that
the petitioner asked Osepczuk to kill the victim. Agent Wesson explained that no proof that the
petitioner solicited the murder of the victim was presented at Osepczuk's trial because the direct
evidence of Osepczuk's guilt was overwhelming without any reference to the petitioner. The
petitioner, who did not attend Osepczuk's trial, testified that he had obtained a copy of this
court's opinion in Osepczuk's direct appeal and that it established that the state used a different
theory at Osepczuk's trial. The post-conviction court ruled that the state did not use factually
inconsistent theories in the two trials.

As indicated, it was the state's theory at the petitioner's trial that the petitioner solicited
the murder of the victim. This court's opinion in the direct appeal of Osepczuk's conviction
establishes that no mention was made of the petitioner or his soliciting the murder of the victim.
State v. Osepczuk, No. M1999-00846-CCA-R3-CD (Tenn. Crim. App., at Nashville, Feb. 1,
2001). Nevertheless, the petitioner has failed to establish that the state presented factually
inconsistent theories and evidence at his and Osepczuk's separate trials. The evidence offered at
each trial as to the circumstances surrounding the attempt on the victim's life was identical. At
the petitioner's trial, the state also offered evidence additional evidence not offered at Osepczuk's
trial to connect the petitioner to the crime. In our view, this does not qualify as inconsistent.
The petitioner is not entitled to relief on this issue.

20
 Because trial counsel performed deficiently by failing to present as a ground for relief on
direct appeal the trial court's failure to instruct on solicitation of first degree murder as a lesser
included offense and because the petitioner has established that he was prejudiced by the
deficiency, the judgment of the post-conviction court must be reversed, the conviction must be
set aside, and the cause must be remanded for a new trial. On remand, all lesser included
offenses, as warranted by the evidence, should be included in the instructions to the jury.

___________________________________
GARY R. WADE, PRESIDING JUDGE

21