IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1998 SESSION
August 21, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
DERRICK K. GARRIN, ) NO. 02C01-9707-CR-00272
)
Appellant, ) SHELBY COUNTY No. P-17200
)
VS. ) HON. JOSEPH B. DAILEY,
) JUDGE
STATE OF TENNESSEE, )
) AFFIRMED - RULE 20
Appellee. )
ORDER
This is a post-conviction matter. The petitioner was originally convicted by
a jury of two (2) counts of felony murder and two (2) counts of attempted second
degree murder. He received an effective sentence of life imprisonment plus
twenty-one (21) years. This court subsequently affirmed those convictions.
State v. Derrick K. Garrin, C.C.A. No. 02C01-9501-CR-00028, Shelby County
(Tenn. Crim. App. filed May 24, 1996, at Jackson).
The petitioner complains that he was deprived of effective assistance of
counsel at both the trial and appellate levels. The petitioner alleges counsel was
deficient for: (1) failing to effectively cross-examine a state’s witness, (2) failing to
call certain witnesses, and (3) failing to present mitigating evidence at his
sentencing hearing. Further, petitioner complains appellate counsel failed to
properly challenge the “moral certainty” jury charge, and the post-conviction court
committed plain error when it refused to provide him with a portion of the trial
transcript during the post-conviction hearing in order to contest a “dynamite” jury
charge.
With regard to the ineffective assistance of counsel claim, we find the
petitioner fails to present even a colorable claim of deficient representation. The
trial court found the petitioner received “outstanding representation.” The
evidence does not preponderate otherwise.
Any alleged error regarding the “moral certainty” jury charge was waived
by the failure to present it on direct appeal. Furthermore, the “moral certainty”
jury charge was proper. See Carter v. State, 958 S.W.2d 620, 626 (Tenn. 1997).
Likewise, any alleged error regarding a “dynamite” jury charge was waived
by the failure to present it on direct appeal. Further, this allegation is not set
forth in the petition or amended petition; thus, the post-conviction court properly
refused to consider it. See Tenn. Code Ann. § 40-30-210(c).
After thoroughly reviewing the record, the briefs, and the law governing
the issues presented by the petitioner, we conclude the evidence does not
preponderate against the findings of the trial court that the petitioner received
effective assistance of counsel. Further, no error of law requiring a reversal of
judgment is apparent. Accordingly, pursuant to Rule 20 of the Tennessee Court
of Criminal Appeals, we affirm the judgment of the trial court. Costs are taxed to
the state as the appellant is indigent.
All of which is so ordered.
_________________________
JOE G. RILEY, JUDGE
_________________________
CURWOOD WITT, JUDGE
_________________________
ROBERT W. WEDEMEYER,
SPECIAL JUDGE
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