Torrey L. Frazier v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 23, 2013 Session

TORREY L. FRAZIER v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Roane County
No. 11903 E. Eugene Eblen, Judge

No. E2012-01751-CCA-R3-PC - Filed November 6, 2013

The Petitioner, Torrey L. Frazier, appeals the Roane County Criminal Court’s dismissal of
his petition for post-conviction relief from his conviction of second degree murder and
resulting twenty-two-year sentence. On appeal, the Petitioner contends that he received the
ineffective assistance of trial counsel. Based upon the oral arguments, the record, and the
parties’ briefs, we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Gregory P. Isaacs and Andrea B. Mohr, Knoxville, Tennessee, for the appellant, Torrey L.
Frazier.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; and
Russell Johnson, District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

The facts of this case have been previously summarized as follows:

At approximately 1:00 a.m. on December 28, 1997,
Torrey Lyonel Frazier (the “petitioner”) shot and killed the
victim, Anthony Eugene Thomas (the “victim”), at a place
known as Skinny Miller’s in Roane County. The petitioner fired
multiple shots at close range, one of which penetrated the
 stomach, right lung, and aorta of the victim. The petitioner,
charged with first-degree murder, claimed self-defense. He
asserted that he had been threatened by the victim as a result of
a prior incident and contended that, just prior to firing his gun,
he had seen the victim reach for an object with a black handle in
the front portion of his pants. [Two attorneys] were appointed
as counsel. At trial, the police offered testimony that they had
found no weapons during their investigation which might have
supported the petitioner’s claim. Further, a practical nurse, who
had performed cardiopulmonary resuscitation on the victim
shortly after the shooting, had loosened the victim’s clothing at
the scene and had not observed any weapon in his possession.
The jury returned a verdict of second-degree murder, and the
trial court imposed a sentence of twenty-two years.

Frazier v. State, 303 S.W.3d 674, 677 (Tenn. 2010).

On direct appeal of his conviction to this court, the Petitioner argued that the evidence
was insufficient to support the conviction, that the trial court erred by admitting into evidence
a Tech-9 handgun that was not associated with the crime, that the trial court erred by
allowing the State to question a defense witness about a pending charge for statutory rape,
and that the trial court imposed an excessive sentence. State v. Torrey L. Frazier, No.
E2000-01364-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 956, at **1-2 (Knoxville, Dec.
19, 2001). This court affirmed the conviction and sentence. Id. at *2. The Petitioner did not
file an application for permission to appeal to our supreme court.

The Petitioner retained counsel, and on July 21, 2004, counsel filed an untimely
petition for post-conviction relief. In the petition, the Petitioner alleged the ineffective
assistance of trial counsel, including that trial counsel were ineffective because they failed
to notify him about the results of his direct appeal, failed to withdraw from his case pursuant
to Tennessee Supreme Court Rule 14, and failed to file an application for permission to
appeal pursuant to Tennessee Rule of Appellate Procedure 11. Although retained counsel
filed the petition outside the statute of limitations, the State conceded that the Petitioner was
entitled to a delayed application for permission to appeal to our supreme court. The trial
court granted the delayed appeal and stayed its consideration of the Petitioner’s remaining
post-conviction claims. The supreme court denied the application on February 21, 2006.

Subsequently, the trial court held an evidentiary hearing on the Petitioner’s remaining
post-conviction issues. The Petitioner, who was still being represented by retained counsel,
argued that he received the ineffective assistance of trial counsel because they failed to

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request a jury instruction on second-degree murder as a “result of conduct” offense, failed
to raise the instruction issue on direct appeal, and failed to raise an issue of alleged juror bias
in the motion for new trial. Torrey Lyonel Frazier v. State, No. E2007-02518-CCA-R3-PC,
2009 Tenn. Crim. App. LEXIS 242, at *2 (Knoxville, Mar. 25, 2009). The post-conviction
court denied the petition.

The Petitioner, still represented by retained counsel, appealed to this court, and this
court affirmed the trial court’s denial of the petition. Id. Thereafter, the Petitioner filed a pro
se application for permission to appeal to our supreme court. As that court explained, the
Petitioner

argu[ed] for the first time that the trial court had committed error
by failing to sua sponte address a conflict of interest issue. The
petitioner claimed that because [retained counsel] had
represented him in the delayed appeal, [retained counsel] should
have been disqualified in the subsequent post-conviction
proceeding and appeal. He contended that he should have been
advised of the potential conflict of interest in advance of the
evidentiary hearing and given the opportunity to either waive the
issue or insist upon substitution of counsel.

Frazier, 303 S.W.3d at 678. Retained counsel withdrew from the Petitioner’s case, and our
supreme court granted permission to appeal in order to address the conflict of interest issue.
In its ruling, the supreme court held as follows:

The statute authorizing the appointment of counsel in a
post-conviction proceeding implicitly includes the right to
conflict-free counsel. When a conflict of interest is apparent,
the trial court has the duty to conduct an independent inquiry
prior to the evidentiary hearing. The trial court did not do so in
this instance. The cause is remanded, therefore, for a
determination of whether the petitioner, through his
communications with [retained counsel], knowingly and
voluntarily waived the conflict of interest. If not, the petitioner
is entitled to conflict-free counsel throughout the
post-conviction proceedings.

Id. at 685.

On remand, the trial court held an evidentiary hearing, determined that the Petitioner

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did not knowingly and voluntarily waive retained counsel’s conflict of interest, and
scheduled a new post-conviction hearing. Newly appointed post-conviction counsel filed an
amended petition, alleging that the Petitioner received the ineffective assistance of trial
counsel because counsel failed to conduct a reasonable investigation of the case, failed to file
necessary pretrial motions, failed to engage in plea negotiations with the State, failed to
interview and prepare witnesses, failed to advise the Petitioner about important sentencing
issues, failed to address properly the fact that a biased female juror was allowed to remain
on the jury, failed to object to the medical examiner’s trial testimony, failed to object to
improper lay opinion testimony, failed to object to the prosecutor’s placing a Tech-9 handgun
in the Petitioner’s hand at trial and having him demonstrate the victim’s actions before the
shooting, and failed to request a jury instruction on second degree murder as a “result-of-
conduct” offense. The amended petition also alleged that the Petitioner received the
ineffective assistance of counsel on direct appeal because retained counsel failed to cite to
legal authority in the Rule 11 application to our supreme court, met with the Petitioner only
one time outside of court, and did not take or return the Petitioner’s telephone calls.

At the post-conviction evidentiary hearing, co-counsel at trial testified that he became
licensed to practice law in 1978. At the time of the Petitioner’s trial in July 1999, co-counsel
had tried more than ten homicide cases. Co-counsel said that in April 2005, his law license
was suspended due to an “improper” order he filed. He acknowledged that by “improper,”
he meant the order made misrepresentations to the court. Prior to the suspension, co-counsel
had practiced criminal, domestic, and property law. Co-counsel said he currently was
employed by a Ford dealership in Wartburg.

Co-counsel testified that the trial court appointed him to assist lead counsel with the
Petitioner’s first degree murder case because lead counsel was inexperienced. Co-counsel
and lead counsel hired an investigator, went to the scene of the shooting, and met several
times with the Petitioner. Co-counsel remembered meeting with the Petitioner twice before
trial. Co-counsel said that during the first meeting, he and lead counsel talked with the
Petitioner about the facts of the case, “hearing it from his own mouth.” They also met with
the Petitioner the day before trial. Co-counsel acknowledged that he may have filed a
discovery motion, a motion requesting an investigator, and a motion to compel the production
of witnesses’ arrest statements. Co-counsel did not remember if he filed a motion to suppress
the Petitioner’s statement to police, a motion to prohibit the State from questioning the
Petitioner about prior bad acts, or a motion to prohibit the State from impeaching the
Petitioner with prior convictions. He said he did not know why he would have failed to file
those pretrial motions.

Co-counsel testified that he did not remember how many hours he worked on the
Petitioner’s case but that he worked on the case more than two hours. Co-counsel voir dired

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potential jurors. He said that during voir dire, the parties discovered that one of the potential
jurors had “some type of involvement” with defense witness Terrell Gordon and that the trial
court removed the potential juror. Post-conviction counsel asked co-counsel to read a portion
of the trial transcript. Co-counsel acknowledged that according to the transcript, the
individual at issue served as a juror during the trial. Co-counsel said that “[t]he record is
what it is” but that “[m]y recollection is this juror was let go before the case was even tried.
. . . I have no reason to dispute that the record is not correct. But this is my memory at this
time.” He acknowledged that the individual’s having served on the jury would have been a
“big problem.” Co-counsel filed the motion for new trial in this case but did not raise the
juror bias issue. Co-counsel said he did not remember the prosecutor’s handing the Petitioner
a Tech-9 during the trial and having the Petitioner demonstrate the victim’s actions before
the shooting. He said that he normally tried to negotiate plea agreements for his clients but
that he did not remember if he did so in this case. Co-counsel also did not remember
explaining the Petitioner’s potential sentence to him.

On cross-examination, co-counsel testified that the defense raised the issue of self-
defense at trial. Co-counsel reiterated that he thought the juror bias issue came up during
voir dire, not during the trial. However, on redirect examination, he testified that “I could
very well be wrong.”

Lead counsel testified that he had been an attorney since 1998. He said that, at some
point, he got into “a little bit of trouble” with the Board of Professional Responsibility due
to an addiction to prescription pain medication and “ended up serving a little six month
hiatus.” In 1999, the trial court appointed lead counsel to represent the Petitioner and
appointed co-counsel to assist lead counsel. Before trial, lead counsel met with the
Petitioner, who was on bond, and two witnesses to the shooting. The meeting occurred at
the Petitioner’s home, and co-counsel was not present. Lead counsel said that he also may
have met with the Petitioner in lead counsel’s office and that he and co-counsel met with the
Petitioner at least one time together. The trial court appointed an investigator, and the
investigator also met with witnesses.

Lead counsel acknowledged that he may not have filed a motion to suppress the
Petitioner’s statement to police or motions to prohibit the State from questioning the
Petitioner about prior bad acts or convictions. He stated that “if I had [the Petitioner’s] case
to try today, after 13 - 12 to 13 years of experience, I would have done a lot of things
differently.” Regarding plea negotiations, lead counsel said that “it seems like we talked
about some pleading to a second degree . . . and I, I think were trying to get them to offer
some manslaughter charge.” However, lead counsel could not remember if the State made
a plea offer. He said that he remembered “some reenactment” during the trial but that he did
not remember the prosecutor asking the Petitioner to put the Tech-9 in the Petitioner’s pants.

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He said that the Tech-9 was “a pretty substantial issue” and that the defense probably should
have objected to the reenactment. He said that he did not remember an issue involving a
biased juror and that the Petitioner’s case was the first and last homicide case he tried.

Rosetta Harkeness, the Petitioner’s mother, testified that she attended the Petitioner’s
trial and observed a juror named “Ms. Samples.” Harkeness said she did not know Samples
personally but that defense witness Terrell Gordon told Harkeness that he had gotten into a
prior altercation with Samples’s son and that he and Samples’s son were scheduled to go to
trial over the altercation. Harkeness told trial counsel about the problem, but they told her
not to worry about it. During the trial, Harkeness saw Samples talking with other jurors in
the hallway during breaks. She also saw Samples go into the jury room with the other jurors.
On cross-examination, Harkeness testified that she did not hear what Samples said to the
other jurors.

The Petitioner testified that he met with lead counsel one time at the Petitioner’s home
the night before trial. The meeting lasted thirty to forty minutes, and witnesses Terrell
Gordon and Christopher Williams also were present. During the meeting, lead counsel talked
with Gordon and Williams and told the Petitioner that “we was going for self defense.” The
Petitioner did not meet with lead counsel again, never met with an investigator, and did not
meet co-counsel until the morning of trial. The Petitioner said that during the trial, he told
counsel about juror Samples’s possible bias, but counsel told him that “she got off and we
got the case beat so everything’s okay.” Also during the trial, the State forced the Petitioner
to use a Tech-9 in a reenactment. The Petitioner said lead counsel “tried to [object to the
reenactment,] but they let it go.” Trial counsel told the Petitioner that he needed to testify,
but they did not prepare him for cross-examination. Counsel never gave the Petitioner a copy
of discovery or discussed possible sentencing issues with him.

On cross-examination, the Petitioner testified that after he was charged with murder
in this case, he pled guilty to a drug charge and received an eight-year sentence to be served
on community corrections. He said that trial counsel were lying about the number of times
they met with him, that he was only twenty-one years old at the time of trial, and that he had
not wanted to testify.

In a written order, the post-conviction court denied the petition for post-conviction
relief. Regarding the Petitioner’s claims that trial counsel failed to investigate his case and
failed to investigate witnesses, the court accredited counsels’ testimony that the trial court
appointed an investigator to assist the defense and lead counsel’s testimony that he personally
interviewed witnesses at the Petitioner’s home. The court found that the Petitioner failed to
show any prejudice due to counsels’ failure to interview a particular witness. As to counsels’
failure to file necessary pretrial motions, the court found that “there was no pretrial motion

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suggested by the petitioner based upon the trial record, that should have been filed but was
not to the demonstrable prejudice of the Petitioner.” Regarding counsels’ failure to engage
in plea negotiations, the post-conviction court stated that lead counsel and co-counsel both
testified that they would have been open to plea offers by the State but that they did not
remember the State’s making an offer. The court also addressed the Petitioner’s claim that
he had not wanted to testify at trial, stating, “The Court finds at this juncture that this claim
is self-serving and unsupported by any corroborative evidence.”

Regarding possible bias by juror Samples, the court found that the Petitioner again
failed to demonstrate prejudice because “[t]he record disclosed that this juror was in fact
excused from the jury panel by the Court before actual deliberations were engaged in by the
impaneled jury, and no other showing that she engaged in any improper communications with
other jurors before her discharge from service.” Finally, as to trial counsels’ failure to object
to lay and expert opinion testimony, the post-conviction court found that the Petitioner failed
to make any showing as to why the testimony was improper or prejudicial. Thus, the post-
conviction court denied the petition for post-conviction relief.

II. Analysis

On appeal, the Petitioner maintains that he is entitled to post-conviction relief because
trial counsel failed to address at trial the issue regarding juror Samples, failed to conduct a
reasonable investigation of his case, failed to interview and prepare important witnesses for
trial, failed to file necessary pretrial motions, failed to engage in plea negotiations with the
State, failed to advise him regarding important sentencing issues, failed to object to the
prosecutor’s placing the Tech-9 in his hand and having him demonstrate the victim’s actions
before the shooting, failed to raise timely objections to lay opinion testimony by a police
officer and object to expert opinion testimony by the medical examiner, failed to request a
jury instruction on second degree murder as a “result-of-conduct” offense, and failed to raise
the issue regarding the instruction on direct appeal.

To be successful in a claim for post-conviction relief, a petitioner must prove factual
allegations contained in the post-conviction petition by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which
there is no serious or substantial doubt about the correctness of the conclusions drawn from
the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the
credibility of witnesses, the weight and value to be accorded their testimony, and the factual
questions raised by the evidence adduced at trial are to be resolved by the post-conviction
court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore,
the post-conviction court’s findings of fact are entitled to substantial deference on appeal

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unless the evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause 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 [petitioner] makes an
insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

A. Biased Juror

The Petitioner contends that he is entitled to post-conviction relief because trial
counsel failed to address during the trial the issue of a biased juror being allowed to remain
on the jury. The State argues that the Petitioner has not demonstrated prejudice because the
record shows that the juror was dismissed prior to jury deliberations. We conclude that the
Petitioner is not entitled to relief.

The trial record reflects that after the State rested its case-in-chief, the trial court held
a bench conference and informed the parties that one of the jurors, “Ms. Samples,” had
informed the court that she knew one of the witnesses, Terrell Gordon. During the

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conference, Samples said to the parties, “I don’t know Terrell Gordon, and you all didn’t
mention his name. But my husband has a case where my little boy, over two years ago at the
ball game . . . , [accidentally] bumped into him, and Terrell Gordon turned around and busted
his nose.” Defense counsel advised the court that it was going to call Gordon as a witness
during its case-in-chief, and the trial court informed Samples, “You need to look at his
testimony and judge it the same as the others.” Samples replied, ”Well, I mean, I can be
honest, but I wanted to be fair and say, because his name hasn’t been mentioned.” The trial
court told Samples that “it’s not anything to worry about.” The bench conference concluded,
and the trial court instructed the jurors to go into the jury room.

When trial resumed, six witnesses, including Gordon, testified in the Petitioner’s case-
in-chief, and one witness testified for the State on rebuttal. At the close of all the proof, a
bench conference occurred during which the State asked the trial court, “[D]o we need to
address the juror issue, about dropping that juror? We need something on record that you
object or don’t object to her being a juror.” The State also said, “I don’t know what she’s
going to say in the jury room about him. And I don’t want any appeal issues.” The State
recommended that Samples be excused from the jury, the trial court agreed, and lead counsel
stated, “I think that’s probably the safest thing.”

The Petitioner contends that trial counsel were ineffective because Samples was not
removed from the jury until the close of all the proof, which gave her the opportunity to make
prejudicial remarks to other jurors regarding her knowledge of Gordon and the facts
surrounding his assault of her son. However, the Petitioner did not call Samples or any of
the jurors who deliberated on his case to testify at the evidentiary hearing to show that
Samples tainted the jury with improper comments about Gordon. Thus, we agree with the
post-conviction court that the Petitioner has failed to show that he was prejudiced by any
deficiency.

B. Failure to Investigate Case and Interview Witnesses

Next, the Petitioner claims that he received the ineffective assistance of counsel
because trial counsel failed to investigate the facts of his case and failed to interview
important witnesses. However, the post-conviction court accredited lead counsel’s testimony
that he met with the Petitioner and interviewed witnesses. We note that the Petitioner also
testified that lead counsel interviewed two defense witnesses. The Petitioner has failed to
explain what more counsel should have done to investigate his case, has not given the names
of any other witnesses counsel should have interviewed, and did not present those
“important” witnesses at the hearing. Generally, “[w]hen a petitioner contends that trial
counsel failed to discover, interview, or present witnesses in support of his defense, these
witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State,

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794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on any benefit these
witnesses would have offered to the petitioner’s case, nor may we guess as to what evidence
further investigation may have uncovered. Id.

C. Failure to Engage in Plea Negotiations

As for the Petitioner’s claim that counsel failed to engage in plea negotiations with
the State, as the post-conviction court found, nothing indicates that the State made a plea
offer to the defense or was even willing to negotiate with trial counsel. In any event, lead
counsel testified that there may have been some discussions about a guilty plea to second
degree murder or manslaughter, and the jury convicted the Petitioner of the former. Thus,
the Petitioner has failed to show that he was prejudiced by trial counsels’ failure to enter into
plea negotiations.

D. Failure to File Pretrial Motions

The Petitioner claims that trial counsel were ineffective for failing to file pretrial
motions. First, the Petitioner argues that counsel should have filed a motion to exclude
evidence of his prior drug convictions pursuant to Rule 404(b), Tennessee Rules of Evidence.
The trial transcript reflects that during the Petitioner’s direct examination, lead counsel asked
if he had been convicted of a prior felony and that the Petitioner said he had been convicted
of selling and delivering cocaine. On cross-examination, the State asked if he actually had
been convicted of three drug offenses, and the Petitioner said yes. Thus, the record reveals
that it was the Petitioner’s direct testimony that triggered the State’s questioning about his
prior convictions.

In a related argument, the Petitioner contends that defense counsel’s failure to file a
similar motion regarding Terrell Gordon resulted in the State’s improperly questioning
Gordon about a pending statutory rape charge. In this court’s opinion of the Petitioner’s
direct appeal of his convictions, though, this court found that while the State’s questioning
of Gordon was improper pursuant to Tennessee Rule of Evidence 608(b), it was also
harmless. Torrey L. Frazier, No. E2000-01364-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS
956, at **21-22. Therefore, the Petitioner has failed to demonstrate that he was prejudiced
by counsels’ failure to file the motion.

The Petitioner also claims that counsel were ineffective for failing to file a motion to
suppress his statement to police because he gave the statement without the assistance of
counsel. Our review of the trial transcript shows that Officer Chuck Moore testified that he
interviewed the Petitioner several days after the shooting, that he read Miranda warnings to
the Petitioner before the interview, and that the Petitioner agreed to waive his rights and

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signed a waiver of rights form. The Petitioner did not testify to the contrary at the
evidentiary hearing, and he has offered no other basis that would have supported a motion
to suppress his statement.

Finally, the Petitioner contends that defense counsel should have filed a motion to
suppress various unsigned witness statements. However, he has not explained how that
motion would have been successful or changed the outcome of his case.

E. Failure to Advise the Petitioner about Important Sentencing Considerations

Next, the Petitioner contends that trial counsel were ineffective for failing to advise
him about important sentencing issues. Specifically, he contends that he did not learn until
after his sentencing hearing that he would have to serve 100% of his twenty-two year
sentence. The Petitioner notes that at his sentencing hearing, the trial court stated that it was
sentencing him as a Range I offender; therefore, he thought he would have to serve only
thirty percent of his sentence. However, second degree murder is considered a violent
offense for which a defendant is required by statute to serve 100% of the sentence. See
Tenn. Code Ann. § 40-35-501(i)(1), (2)(B). The Petitioner has failed to explain how he was
prejudiced by trial counsels’ failure to advise him of that fact.

F. Failure to Advise Petitioner About His Option to Testify

The Petitioner contends that he “was not given sufficient opportunity after
consultation with counsel to consider whether he wished to testify.” However, the post-
conviction court discredited the Petitioner’s claim during the evidentiary hearing that he did
not want to testify at trial, and nothing preponderates against the finding of the trial court.

G. Failure to Object Timely to Reenactment and Use of Tech-9 During Reenactment

The Petitioner contends that trial counsel were ineffective for failing to make a timely
objection when the prosecutor placed a Tech-9 handgun, which was not connected to the
case, in the Petitioner’s hand and had the Petitioner demonstrate the victim’s actions before
the shooting. The Petitioner contends that “[t]he prosecution laid no foundation for the
presentation of this evidence prior to asking [the Petitioner] . . . to conduct a physical
demonstration with a large firearm that was not connected to the offense” and that the
evidence was highly prejudicial and inflammatory. We conclude that the Petitioner is not
entitled to relief on this issue.

The trial transcript reflects that during the Petitioner’s direct testimony, lead counsel
told the Petitioner to stand up, pretend to be the victim, and demonstrate for the jury how the

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victim reached into his pants for the Tech-9. On cross-examination, the State showed the
Tech-9, which had been introduced into evidence for identification purposes only, to the
Petitioner and asked him to show the jury how the victim had the gun “stuff[ed]” down the
victim’s pants. The Petitioner did as the State requested, and the State moved that the gun
be introduced into evidence and passed to the jury. At that point, lead counsel objected,
stating, “Your Honor, the witness has not testified that this was the gun that he saw that
night.” The trial court stated that “[t]his is not introduced as the gun that was there; just as
a tech nine” and overruled the objection.

This court addressed this issue on direct appeal, explaining,

In the instant case [Terrell] Gordon, the defendant’s first
witness, alleged that [Quincy Willis, an associate of the victim,]
had handed the victim a weapon outside of Skinny Miller’s.
Gordon added that the weapon had looked “like a tech-nine or
something.” Defense counsel then began asking questions about
the size of a tech-nine and whether the victim’s coat had been
large enough to conceal a weapon of this type. Furthermore,
defense counsel returned to this topic on re-direct eliciting more
specific testimony concerning the victim’s hiding of the weapon.
According to Gordon he saw the victim place the weapon in the
back of the victim’s pants under the aforementioned jacket. This
witness added that a tech-nine was not too big to carry in that
manner. In view of this line of questioning, the defendant
opened the door and made the tech-nine relevant; thus, this
contention lacks merit.

Torrey L. Frazier, No. E2000-01364-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 956, at
**14-15. In a footnote to the paragraph, this court noted,

During cross-examination of the defendant, the prosecution
produced a tech-nine. Since the defendant claimed to have seen
the handle of a weapon in the victim’s pants, the State asked the
defendant to place the tech-nine into his pants and to draw the
weapon. Through this exchange the defense raised no objection.
Nevertheless, when the State asked that the weapon be passed
to the jury, the defense objected because the defendant himself
had not specifically claimed that a tech-nine was involved.
Later the defense objected once more, this time contesting the
size of a clip mentioned by the State. Though the trial court

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 overruled both objections, it did so in the latter instance “with
the instruction to the jury that this is not alleged to be the gun
that was there. We’re merely talking about a type of weapon.”

Id. at *15 n.10.

Thus, as this court stated, the Tech-9 was relevant at trial. Moreover, although the
Tech-9 used during the demonstration was not the actual weapon alleged to have been
present during the crime, the trial court instructed the jury to that fact. As to the prejudicial
effect of the reenactment itself, whether the victim was able to conceal a gun the size of a
Tech-9 in his pants was highly relevant to the Petitioner’s claim of self-defense. Therefore,
we see nothing improper about the State’s asking the Petitioner to demonstrate for the jury
how the gun was concealed in the victim’s pants. See Tenn. R. Evid. 403 (stating that
relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice). The Petitioner had failed to demonstrate that counsel rendered
deficient performance or that he was prejudiced by any deficiency.

G. Failure to Object Timely to Lay Opinion Testimony

The Petitioner contends that he received the ineffective assistance of counsel because
trial counsel allowed Officer Moore to give improper lay opinion testimony about the Tech-9.
However, the Petitioner has failed to explain how the officer’s testimony was improper
pursuant to Tennessee Rule of Evidence 701, which specifically governs the admission of
opinion testimony by a lay witness. Therefore, he is not entitled to relief.

H. Failure to Object to Medical Examiner’s Testimony

The Petitioner contends that trial counsel were ineffective for failing to object to
medical examiner Charles Harlan’s testimony about the victim’s cause of death. The
Petitioner claims that Harlan was not qualified to testify because his medical license was
revoked in May 2005. The Petitioner contends that “[u]pon information and belief, Dr.
Harlan came under investigations for allegations of misconduct as early as 1995” and that
counsel should have learned about the allegations before the Petitioner’s trial so that counsel
could have cross-examined Harlan about the allegations. We disagree with the Petitioner.
Nothing indicates that counsel should have known about the allegations prior to the
Petitioner’s July 1999 trial. In any event, the Petitioner has failed to cite to any part of
Harlan’s testimony that was negligent, deceitful, or fraudulent. Therefore, the Petitioner has
failed to show that he received the ineffective assistance of counsel.

I. Failure to Request Jury Instruction

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 Finally, the Petitioner argues that he received the ineffective assistance of counsel
because trial counsel failed to request a jury instruction on second degree murder as a “result-
of-conduct” offense and failed to raise the issue on direct appeal. The State contends that
the Petitioner is not entitled to relief. We agree with the State.

As this court previously explained,

When the trial court charged the jury at the conclusion of
Petitioner’s trial, it instructed them:

Any person who commits the offense of
second degree murder is guilty of a crime. For
you to find the defendant guilty of this offense,
the State must have proved beyond a reasonable
doubt the existence of the following essential
elements.

First, that the defendant unlawfully killed
the alleged victim, and that the killing was
knowing[]. A person acts knowingly if that
person acts with an awareness that his or her
conduct is of a particular nature, or that a
particular circumstance exists, or that the conduct
was reasonably certain to cause the result.

Torrey Lyonel Frazier, No. E2007-02518-CCA-R3-PC, 2009 Tenn. Crim. App. LEXIS 242,
at **9-10. The instruction followed the Pattern Jury Instructions in effect at the time and
included both a nature-of-conduct and a result-of-conduct instruction.

Later, in State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), this court stated that
“a knowing second degree murder is strictly a ‘result-of-conduct’ offense. The result of the
conduct is the only conduct element of the offense; the ‘nature of the conduct’ that causes
death is inconsequential.” Id. at 787 (citing State v. Ducker, 27 S.W.3d 889, 896 (Tenn.
2000)). Although the Petitioner contends that trial counsel were ineffective for failing to
object to the trial court’s instruction on second degree murder, given that the trial court gave
the instruction reflected in the Pattern Jury Instructions, we conclude that trial counsel were
not deficient.

As for trial counsels’ failure to raise the issue on direct appeal, in State v. Faulkner,
154 S.W.3d 48, 59 (Tenn. 2005), a first degree murder case, our supreme court concluded

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that the “superfluous language in the ‘knowingly’ definition did not lessen the burden of
proof because it did not relieve the State of proving beyond a reasonable doubt that the
defendant acted knowingly” and, therefore, constituted harmless error. Therefore, we
conclude that the Petitioner has failed to demonstrate prejudice.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

_________________________________
NORMA McGEE OGLE, JUDGE

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