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
425 Fifth Avenu e North
Nashville, TN 37243
J. MICHAEL TAYLOR
District Attorney General
STEVEN M. BLOUNT
Assistant District Attorney General
324 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 § 40-30-111, -112 (repealed and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
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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.
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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
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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)).
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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.
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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
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attempting to have the trial court define the term