Joletta Summers v. State of Tennessee

07/14/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 11, 2017 Session

JOLETTA SUMMERS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
No. 11-01531 Carolyn W. Blackett, Judge
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No. W2016-02157-CCA-R3-PC
___________________________________

Petitioner, Joletta Summers, appeals the denial of her petition for post-conviction relief
from her convictions for voluntary manslaughter, attempted voluntary manslaughter, and
employment of a firearm during the commission of a dangerous felony. On appeal,
Petitioner asserts that she received ineffective assistance of counsel because trial counsel
mentioned during opening statement an inculpatory statement that was never introduced
into evidence; failed to adequately argue for severance of her case from her
codefendant’s; failed to object to the State’s improper closing argument; failed to file a
timely motion for new trial; and failed to argue on appeal that the trial court erred in
failing to specify the predicate felony in the jury instructions for the employment of a
firearm charge. Upon our review of the record and applicable authorities, we affirm the
judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
J. ROSS DYER, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Joletta Summers.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Paul Goodman,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
 Factual and Procedural Background

Petitioner and her husband, Antonio Jackson, were indicted for second degree
murder, attempted second degree murder, and employing a firearm during the
commission of a dangerous felony. See State v. Antonio Jackson and Joletta Summers,
No. W2013-00185-CCA-R3-CD, 2014 WL 6200805, at *1 (Tenn. Crim. App. Nov. 10,
2014), perm. app. denied (Tenn. Feb. 13, 2015). The facts at trial established that
Petitioner’s and Jackson’s teenaged son, “Little Tony,” got into a fight with another boy
while playing basketball. Petitioner and Jackson drove to where the group of teenagers
had been playing basketball in order to confront them, though the boy who had started the
fight had already left. A fist fight erupted between Jackson and the victims, Nico White
and Marion Withers. At some point, Petitioner went to the passenger side of her vehicle
and then returned to Jackson’s side. Gunshots were fired from the vicinity of Petitioner
and Jackson, killing Mr. Withers and severely wounding Mr. White. One witness
testified that Jackson fired the shots, while others could not identify who had the gun.
Low levels of gunshot residue were detected on Jackson’s hands but not on Petitioner’s.
Jackson testified, claiming that the victims attacked him first and denying that he had a
gun or that he shot anyone. Jackson initially told police that Petitioner was responsible
for the shooting “because it appeared that she had a gun” when they returned home;
however, at trial, he denied that he saw Petitioner with a gun at the scene and stated that
he did not know who fired the shots. Petitioner did not testify. Id. at *1-4.

The jury convicted Petitioner as charged of employing a firearm during the
commission of a dangerous felony and of the lesser-included offenses of voluntary
manslaughter and attempted voluntary manslaughter.1 Petitioner was sentenced as a
Range I, standard offender to concurrent terms of three years for each of the
manslaughter convictions and a consecutive term of six years for the firearm conviction,
for a total effective sentence of nine years. Id. On appeal, Petitioner challenged the
sufficiency of the evidence as to the manslaughter convictions and argued that the trial
court erred in denying the motion to sever the defendants and in not admitting into
evidence photographs showing the victims’ gang affiliation and propensity for violence.2
Id. at *5-8. This Court affirmed the convictions, and the Tennessee Supreme Court
denied permission to appeal. Id. at *1.

1
Jackson was also convicted of voluntary manslaughter and attempted voluntary manslaughter,
but he was acquitted of employing a firearm during the commission of a dangerous felony. See Antonio
Jackson and Joletta Summers, 2014 WL 6200805, at *1.
2
Trial counsel also argued in the appellate brief, which was entered into evidence during the
post-conviction hearing, that the conviction for employing a firearm during a dangerous felony should be
reversed because the lesser-included offense of reckless endangerment included the use of a deadly
weapon as an essential element. See T.C.A. § 39-17-1324(c). This argument was not addressed in this
Court’s opinion on direct appeal.
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 On August 7, 2015, Petitioner timely filed a pro se petition for post-conviction
relief. Counsel was appointed, and an amended petition was filed on April 12, 2016.
Supplements to the amended petition were filed on June 20 and July 20, 2016. The
amended petition alleged, in addition to other grounds of ineffective assistance of
counsel, that Petitioner was entitled to a delayed appeal because trial counsel had filed an
untimely motion for new trial. The amended petition also alleged that the indictment for
employing a firearm during the commission of a dangerous felony was void for failing to
name the underlying felony. An evidentiary hearing was held on July 21, 2016. We
summarize below the testimony pertinent to the issues raised on appeal.3

Trial counsel testified that he had been licensed to practice law since 1984, that he
mostly practiced criminal law, and that he had conducted over a hundred jury trials. Trial
counsel was retained to represent Petitioner sometime in 2010. Trial counsel reviewed all
of the discovery materials with Petitioner. Trial counsel testified that he and Petitioner
met “quite a bit” because “this case was set for trial several, several times and it kept
getting continued, because [Petitioner] had a sick daughter.” Trial counsel testified that
he “discussed everything” with Petitioner and that she “seemed fairly satisfied” and
“confident” with the chosen trial strategy.

The judgment forms and a minute entry were entered into evidence, indicating that
the judgments were filed on November 16, 2012. A copy of trial counsel’s motion for
new trial, which was filed on December 18, 2012, was also entered into evidence. Trial
counsel agreed that the motion for new trial should have been filed by Monday,
December 17, 2012, and that it was one day late. The trial court held a hearing on the
motion for new trial where trial counsel submitted the matter on his motion and did not
present any argument.

Post-conviction counsel asked trial counsel about the second issue in the motion
for new trial, which reads as follows:

Defendant states that the Court should have dismissed the charge of
Possessing a Firearm During the Commission of or Attempt to Commit a
Dangerous Offense in that the jury charge lacked specificity and did not
conform to the Defendant’s acts and/or actions as set out in the indictment
or described by the State’s witnesses.

3
Issues raised in the trial court but not raised on appeal are deemed abandoned. See Ronnie
Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App.
Oct. 26, 2009), perm. app. denied (Tenn. Apr. 16, 2010).
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Admitting that the reference to possessing a firearm was a typographical error, trial
counsel explained that he was trying to argue that the indictment for employing a firearm

didn’t connect . . . to any particular crime. That if you’re going to charge
the jury, then you should charge them. The particular crime in in this case
it came back voluntary manslaughter and criminal attempt voluntary
manslaughter, so which one was it attaching to, I think is what I was
saying.

Trial counsel explained that he usually does not cite case law in his motions for new trial.
The second issue in the appellate brief, which was entered into evidence, was “[w]hether
the Court committed reversible error in its charge to the jury on the first Count of the
indictment by reference to the terms ‘deadly weapon’ and ‘firearm.’” Trial counsel
believed that he was attempting to argue the same issue as in the motion for new trial in
that the indictment “didn’t say with any specificity which one [of the other offenses the
State is] attaching this crime to.” Trial counsel cited one case in his appellate brief, State
v. Jeremiah Dawson, No. W2010-02621-CCA-R3-CD, 2012 WL 1572214, at *8 (Tenn.
Crim. App. May 2, 2012) (reversing convictions for carjacking and employing a firearm
during the commission of a dangerous felony when the jury was instructed on both
carjacking by force or intimidation and carjacking with a deadly weapon), perm. app.
denied (Tenn. Sept. 20, 2012). Trial counsel could not recall if he kept up with appellate
decisions addressing the underlying felony issue between the time he filed his appellate
brief and the time this case was decided by the Court of Criminal Appeals.

Trial counsel acknowledged that he had received a copy of codefendant Jackson’s
statement in discovery. In the statement, Jackson initially identified Petitioner as the
person responsible for the death of Mr. Withers and stated that he saw her with a gun
after they left the scene of the shooting. Trial counsel testified that he joined in the
motion to sever filed by Jackson’s attorney. Trial counsel admitted that he did not file his
own written motion for severance. Trial counsel remembered that the motion was argued
and denied, but he did not remember if it was argued before the trial or at some point
during the trial. Trial counsel did not remember specifically what argument he made to
the trial court, but he believed that he would have argued that Jackson’s “statement made
it almost impossible for my client to get a fair trial.” Trial counsel agreed that Jackson’s
attorney would have been arguing different grounds for severance, but he explained that
they were both arguing for a fair trial. Trial counsel did not remember the trial court’s
specific ruling, but he knew that the motion was denied.

Post-conviction counsel then referred to the portion of the trial transcript where
Jackson was being cross-examined by the State. After Jackson stated that he told the
police that Petitioner was responsible for the death of Mr. Withers, trial counsel objected
and requested a bench conference. According to the transcript, trial counsel’s argument
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at the bench was “indiscernible.” Trial counsel did not recall specifically what he said at
that point but stated, “I must have said something about Bruton, I don’t know, because
right after that, [the State] says something about that.”4 Trial counsel agreed that he was
not making a motion for severance at that point in the trial. Trial counsel explained that
he would not have been asking for a severance at that point because the trial court had
already ruled on the issue. Trial counsel agreed that a transcript of the argument on the
severance issue should have been included in the record on direct appeal.

As part of the discovery in this case, trial counsel received a copy of Petitioner’s
statement to police in which she admitted to pulling a gun at the scene and that it
accidentally fired when someone bumped her hand. Trial counsel did not know if the
State would use the statement at trial, but he “suspected they may.” Trial counsel
explained that he mentioned the statement during his opening statement in an attempt to
“take the sting out” of it. Trial counsel presented a self-defense theory in his opening
statement based, in part, on this statement. However, the State did not introduce the
Petitioner’s statement during the trial, and none of the witnesses testified that Petitioner
had a gun in her hand at the scene. In his closing argument, trial counsel argued lack of
evidence that Petitioner possessed the weapon rather than self-defense. Trial counsel
explained that based on the evidence presented at trial, “self[-]defense seemed a little bit
off to me . . . it just didn’t feel right in my closing.” Trial counsel explained that he had
discussed the different approaches with Petitioner. Trial counsel did not know if the jury
would remember what he had said during opening statement but considered that they may
look upon the change in theory “unfavorably.”

Post-conviction counsel showed trial counsel excerpts from the prosecution’s
closing argument, including one where he referred to Petitioner’s son wearing a Polo shirt
at trial as a “smoke screen.” Trial counsel explained that he did not object to that
language because “everyone uses it, basically.” Trial counsel further explained:

I don’t object to everything that comes in. Some things I think [are] a
waste and think jur[ors] tend to, it turns jurors off when you make an
objection on every little point. I mean, they really take that as you’re
hiding something. And some things, if it doesn’t hurt me, I don’t care.

With regard to the prosecutor’s reference to a police officer as a “good officer,” trial
counsel reiterated that “if it doesn’t hurt me, I think you bring more attention sometime[s]
with your objection than you would if you just let it go. Because, the jury, I mean, if you
bring attention to it they are going to pay attention to it.” Trial counsel also did not
4
See Bruton v. United States, 391 U.S. 123, 135-37 (1968) (holding that the admission in a joint
trial of a non-testifying codefendant’s statement implicating the defendant violated the defendant’s right
to cross-examination guaranteed by the Confrontation Clause). Specifically, the prosecutor says “This is
not Bruton.”
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object during jury selection to the judge’s comment that the jury “can’t believe
everything [codefendant Jackson’s counsel] says.” Trial counsel did not believe the
statement was objectionable and did not believe that he could object to the judge’s
statements.

On cross-examination, trial counsel testified that he believed it was in Petitioner’s
best interests to have her case severed from her codefendant but that the decision was
ultimately up to the judge. He remembered seeking severance, the State objecting, and
the judge denying the motion for severance. As to his opening statement, trial counsel
did not believe that he would have presented his argument any differently. Trial counsel
agreed that if self-defense was fairly raised by the proof, then the burden would be on the
State to overcome it, so it would be advantageous to raise a self-defense theory. Trial
counsel agreed that he could not introduce Petitioner’s statement because it would have
been hearsay, but the State could have introduced it as a statement against interest.

Greg Gilbert, the prosecutor who tried Petitioner’s original trial, testified that he
remembered Jackson’s counsel “being the prime mover in an argument for severance”
and trial counsel “joining in to that argument.” Mr. Gilbert believed that the severance
issue was argued pretrial but could not remember exactly when it was argued. Mr.
Gilbert testified that he did not remember trial counsel making an argument. Mr. Gilbert
did not believe that there was a lot of argument because “under the mandatory joinder
rules it is pretty clear that this arises out of the same facts and circumstances.” Mr.
Gilbert believed the severance motion was “a formality, more than anything.” Mr.
Gilbert agreed that trial counsel’s “indiscernible” objection during the cross-examination
of Jackson was in relation to a potential Bruton issue. Mr. Gilbert believed that trial
counsel “may have mentioned, [‘]this is why we wanted a severance.[’]” On cross-
examination, Mr. Gilbert agreed that the Bruton objection was misplaced because he was
not introducing an out-of-court statement of a non-testifying codefendant.

Petitioner testified that after an initial meeting with trial counsel to discuss the
basic facts of the case, Petitioner only briefly met with trial counsel approximately three
times. Trial counsel reviewed the discovery with Petitioner. Petitioner testified that
approximately two or three months before trial, she and trial counsel discussed a trial
strategy based on the lack of evidence. Petitioner testified that trial counsel never
mentioned a self-defense strategy until it was mentioned by Jackson’s attorney at trial.
Petitioner admitted that she did have a gun in her possession that night but claimed that
she did not fire it because her husband was in the middle of the altercation. Petitioner
wanted trial counsel to present an expert witness to explain the lack of gunshot residue on
her hand to counteract the suggestion that she had simply washed her hands. Petitioner
did not remember trial counsel arguing for severance from her codefendant.

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 On cross-examination, Petitioner admitted that she did not see anyone else with a
gun that evening. Petitioner told the police that if her gun fired, it would have been when
her hand was hit. Petitioner claimed that she dropped the gun on the street and denied
that she had a gun in her possession when she and Jackson returned home. Petitioner
explained that when Jackson told police that she “appeared” to have a gun, he must have
been referring to her purse.

The post-conviction court entered a written order denying relief on October 6,
2016. The post-conviction court determined that Petitioner was not prejudiced by the
untimely filing of the motion for new trial because it “was reviewed by the court, and was
denied.” Additionally, the post-conviction court found that Petitioner was not prejudiced
by counsel’s failure to file a separate motion for severance because he joined in the
motion filed by codefendant Jackson’s counsel and the motion was denied. The post-
conviction court found that trial counsel made a reasonable tactical decision when he
mentioned Petitioner’s statement to police in his opening statement and then changed
theories when the statement was not introduced into evidence. As to trial counsel’s
failure to object to the prosecutor’s closing argument, the post-conviction court found
that this was a tactical decision and that Petitioner had not established prejudice because
none of the statements constituted reversible error.

Analysis

Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his or her factual
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
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order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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 v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999). This Court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. (quoting Strickland, 466 U.S. at 691).

Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court’s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley, 960 S.W.2d at 578). This Court will not re-weigh or re-evaluate the
evidence presented or substitute our own inferences for those drawn by the trial court. Id.
at 456. Questions concerning witness credibility, the weight and value to be given to
testimony, and the factual issues raised by the evidence are to be resolved by the post-
conviction court. Id. However, the post-conviction court’s conclusions of law and
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application of the law to the facts are reviewed under a purely de novo standard, with no
presumption of correctness. Id. at 458.

A. Opening Statement

Petitioner argues that trial counsel was ineffective when he referenced her
statement to police in support of a self-defense theory during his opening statement and
then changed defense theories when the statement was not introduced into evidence. The
State responds that trial counsel’s decision to preview the anticipated evidence and
defense theory and his decision to change theories based on the evidence actually
produced at trial were both reasonable tactical decisions.

Unfulfilled promises made during opening statement and sudden unjustified
changes in defense strategy may constitute deficient performance of counsel. See
Johnson v. State, 145 S.W.3d 97, 119 (Tenn. Crim. App. 2004) (finding deficient
performance based on counsel’s failure to present promised expert testimony regarding
defendant’s mental state); Kenneth Anthony v. State, No. M2003-02272-CCA-R3-PC,
2004 WL 1947811, at *4 (Tenn. Crim. App. Aug. 11, 2004) (finding deficient
performance based on counsel’s failure to present any evidence in support of stated self-
defense theory), no perm app. filed; State v. Zimmerman, 823 S.W.2d 220, 224 (Tenn.
Crim. App. 1991) (finding deficient performance based on counsel’s failure to present
promised testimony of defendant and psychologist in support of battered wife defense).
This Court has cautioned that “‘The trial attorney should only inform the jury of the
evidence that he is sure he can prove . . . . His failure to keep [a] promise [to the jury]
impairs his personal credibility. The jury may view unsupported claims as an outright
attempt at misrepresentation.’” Zimmerman, 823 S.W.2d at 225 (quoting McCloskey,
Criminal Law Desk Book, § 1506(3)(O) (Matthew Bender, 1990)). However, a change in
defense strategy in response to unexpected developments in the proof presented at trial
does not constitute deficient performance. See Felts v. State, 354 S.W.3d 266, 284-85
(Tenn. 2011) (determining strategic decision not to present promised testimony of
defendant based, in part, on more-favorable-than-anticipated testimony of victims was
not deficient); Derek T. Payne v. State, No. W2008-02784-CCA-R3-PC, 2010 WL
161493, at *13 (Tenn. Crim. App. Jan. 15, 2010) (determining strategic decision to “stop
on a high note” and not present promised expert testimony after defendant testified
“better than expected” was not deficient), perm. app. denied (Tenn. May 11, 2010); King
v. State, 989 S.W.2d 319, 331 (Tenn. 1999) (determining counsel made reasonable
strategic decision to abandon voluntary intoxication theory after unexpected testimony
regarding defendant’s violence while sober). The primary determining factor is whether
“the reasons prompting the change in strategy were known to counsel at the time the
opening statement was made.” Felts, 354 S.W.3d at 285; see also Zimmerman, 823
S.W.2d at 226 (finding deficient performance when potential issues with chosen strategy

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were known ahead of time and “there appear[ed] to have been no basis for the sudden
change in strategy”).

During his opening statement, trial counsel stated, in pertinent part, as follows:

[Petitioner] gave a statement to the police. I mean an open
statement. Didn’t try to hide anything. And the police will probably tell
you about her statement. She didn’t try to hide [any]thing. She told them
exactly what happened out there.

She turns around and she looks and these thugs are jumping on her
husband. She’s a woman. And we’re not talking about 6-3, 180 pounds.
This kid that we’re talking about, if you want to call him a kid, gangster.
She goes to help her husband. She even tells the police I pulled out the
gun. It was in my hand and she said I really don’t know what happened at
that point on. It was kind of a frenzy out there.

You will find it was kind of a frenzy out there. Everything was
going on. People hollering, people screaming, and people fighting. The
only thing that I can say is [Petitioner] didn’t start it. She didn’t intend to
start it. She just goes over to talk. And it was self-defense. What would
you do if you’re a woman, they beat up your child and you’ve seen how he
looked[?] They’re jumping on your husband. What are you going to do? I
submit to you if you answer that question[,] you’re going to say that
[Petitioner] is not guilty. She tried to protect her husband. And when you
hear her statement you will see that’s what she was trying to do. Nothing
more and nothing less. . . . And I think after you hear all the proof, the only
verdict you can come back with is not guilty.

As trial counsel explained at the post-conviction hearing, the discovery he had
been provided by the State included both a statement from Petitioner in which she
admitted that she had a gun in her hand and that it “went off” as well as a statement from
Gloria Withers identifying the shooter as “the lady.” Trial counsel explained that he
“suspected” that the State would use Petitioner’s statement during its case-in-chief and
that he wanted to “take the sting out” of the evidence by previewing it for the jury during
opening statement. Additionally, codefendant Jackson’s attorney had just told the jury
during his opening statement that Petitioner fired the shots based, in part, on the
anticipated testimony of Ms. Withers. However, during the course of the trial,
Petitioner’s statement was never entered into evidence, and Ms. Withers provided more
equivocal testimony as to the identity of the shooter; specifically, she testified that both
defendants were close to where she saw gunfire and that “one of them” fired the shots.
See Antonio Jackson and Joletta Summers, 2014 WL 6200805, at *2. Trial counsel
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testified that a self-defense argument “didn’t feel right in my closing” based on the
evidence actually presented during the trial. He considered that the jury might look upon
the change in strategy “unfavorably,” but did not know if the jury would remember what
he had said at the beginning of a six-day trial. Trial counsel ultimately argued in closing
that the State presented no proof that Petitioner possessed the gun during the shooting.

We agree with the State that trial counsel never promised the jury that he would
present Petitioner’s statement. In fact, trial counsel agreed that he could not introduce the
statement because it would be hearsay. Trial counsel was simply attempting to predict
the evidence when he stated that “the police will probably tell you about her statement.”
See David Ivy v. State, No. W2010-01844-CCA-R3-PD, 2012 WL 6681905, at *33
(Tenn. Crim. App. Dec. 21, 2012) (holding that a failed attempt to predict the
introduction of evidence in an opening statement did not constitute deficient
performance), perm. app. denied (Tenn. Apr. 9, 2013). Petitioner argues that trial
counsel should have anticipated that the State would not introduce her statement because
the State did not specifically mention it in its own opening statement. However, trial
counsel made a sound tactical decision to confront this inculpatory statement head-on in
order to “take the sting out” of it. Moreover, trial counsel made a sound strategic
decision to abandon the self-defense theory after none of the witnesses at trial testified
that they saw the gun in Petitioner’s hand at the scene. While the Tennessee Supreme
Court has “acknowledge[d] that defense attorneys should strive to present a consistent
theory of defense at trial,” a change in circumstances may justify a change in defense
theory mid-trial. King, 989 S.W.2d at 331; see also Felts, 354 S.W.3d at 285. “The fact
that a particular strategy or tactic failed or hurt the defense does not, standing alone,
establish unreasonable representation.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(quoting Goad, 938 S.W.2d at 369). Petitioner has not met her burden of overcoming
“the strong presumption that counsel provided adequate assistance and used reasonable
professional judgment to make all strategic and tactical significant decisions.” Davidson,
453 S.W.3d at 393. Additionally, Petitioner cannot establish that she was prejudiced
because the jury was instructed that the arguments of counsel are not evidence and to
disregard any statements that are not supported by the evidence. The jury is presumed to
follow the instructions of the trial court. See State v. Banks, 271 S.W.3d 90, 134 (Tenn.
2008). Petitioner is not entitled to relief.

B. Severance

Petitioner argues that trial counsel was ineffective for failing to adequately argue
for a severance from her codefendant. Specifically, Petitioner argues that severance was
justified because she could not receive a fair trial if tried jointly with Jackson due to
Jackson’s statement to police implicating Petitioner. See Tenn. R. Crim. P. 14(c)(2)(B)
(stating that the court should grant a severance if “necessary to achieve a fair
determination of the guilt or innocence of one or more defendants”). Petitioner asserts
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that trial counsel should have filed a written motion for severance, argued the motion
independently from codefendant Jackson’s attorney, and renewed the motion during trial
when Jackson’s statement was admitted during his cross-examination by the State.
However, because trial counsel failed to file a written motion and simply “joined in”
Jackson’s motion, Petitioner’s severance issue was deemed to be waived by this Court on
direct appeal. See Antonio Jackson and Joletta Summers, 2014 WL 6200805, at *7
(“Accordingly, as to Defendant Summers, we conclude that the severance claim is
procedurally waived for not being timely pursued at trial.”).5 The State responds that
Petitioner has failed to establish that she was prejudiced by trial counsel’s failure to
adequately pursue severance pre-trial.

Trial counsel was not ineffective for failing to file a written motion for severance
because none is required by the Tennessee Rules of Criminal Procedure. See generally
Tenn. R. Crim. P. 14; see also Tenn. R. Crim. P. 12(a) (stating that motions in criminal
proceedings “may be oral or written, at the discretion of the judge”). Additionally, trial
counsel was not ineffective for failing to raise the severance issue during the trial because
such a motion must be made pre-trial unless it is “based on a ground not previously
known.” Tenn. R. Crim. P. 14(a)(1)(A); see also Tenn. R. Crim. P. 12(b)(2)(E) (listing a
Rule 14 motion to sever as one that must be made before trial). Petitioner has not
contended that trial counsel was unaware of Jackson’s statement implicating her prior to
its admission during his cross-examination.

As to Petitioner’s argument that trial counsel was ineffective for simply joining in
codefendant Jackson’s motion, Petitioner has not established that trial counsel’s
performance in this regard was deficient. Both trial counsel and the prosecutor, Mr.
Gilbert, recalled trial counsel joining in Jackson’s attorney’s motion, but neither could
recall the specific argument provided by trial counsel. Trial counsel testified that he
believed that his argument for severance would have been based on Jackson’s statement
implicating Petitioner—and, indeed, trial counsel presented that very argument to this
Court on appeal. See Antonio Jackson and Joletta Summers, 2014 WL 6200805, at *6.
We note that while Petitioner submitted the trial transcript as an exhibit, it does not
contain a transcript of any pre-trial hearing on the severance motion. See T.C.A. § 40-30-
110(f) (placing the burden of proving factual allegations by clear and convincing
evidence on the petitioner). Therefore, based on the record presently before us, we agree
with the post-conviction court’s conclusion that Petitioner has failed to establish that trial
counsel’s performance in arguing for severance was deficient.

5
This Court also noted the State’s argument that Petitioner’s motion for new trial was filed one
day late and that the record on appeal did not contain a transcript of the hearing on the motion for
severance; however, we did not deem the issue to be waived on either of these grounds. See Antonio
Jackson and Joletta Summers, 2014 WL 6200805, at *6.
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 Moreover, Petitioner has also failed to establish that she was prejudiced by any
alleged failure on trial counsel’s part. “The decision to sever criminal defendants is
wholly within the discretion of the trial court and cannot be interfered with absent clear
abuse.” State v. Mickens, 123 S.W.3d 355, 383 (Tenn. Crim. App. 2003) (internal
quotations and citations omitted). “Mutually antagonistic” defenses and attempts by each
codefendant to “cast blame on the other” do not alone justify severance. State v. Ensley,
956 S.W.2d 502, 509 (Tenn. Crim. App. 1996). “Where a motion for severance has been
denied, the test to be applied in determining whether the trial court abused its discretion is
whether the defendant was ‘clearly prejudiced’ in his defense as a result of being tried
with his codefendant.” State v. Price, 46 S.W.3d 785, 803 (Tenn. Crim. App. 2000). On
direct appeal, this Court determined that “[a] review of the evidence against each
defendant makes clear that neither was prejudiced by the fact they were tried together.”
See Antonio Jackson and Joletta Summers, 2014 WL 6200805, at *7. Specifically, this
Court held that even if Petitioner’s severance issue were not waived, “it would be without
merit given the abundant proof which the State could have presented in a separate trial
against [Petitioner].” Id.

Petitioner argues at length that these statements in the direct appeal opinion are
ultimately dicta and, therefore, the issue has not been “previously determined.” See
T.C.A. § 40-30-106(h) (“A ground for relief is previously determined if a court of
competent jurisdiction has ruled on the merits after a full and fair hearing.”); Kevin
Wilkins v. State, No. W2006-00639-CCA-R3-PC, 2008 WL 1788055, at *10 (Tenn.
Crim. App. Apr. 18, 2008) (holding that an issue was not previously determined when
addressed on direct appeal only in dictum), perm. app. dismissed (Tenn. Jul. 25, 2008).
However, we see no reason to deviate from our prior evaluation of the State’s proof.
Indeed, had Petitioner been tried separately from Jackson, the State could have certainly
introduced Petitioner’s statement admitting that she possessed the gun during the incident
and that it “went off” in addition to the already “abundant proof” of guilt.

Moreover, we agree with the observation that the severance issue is without merit.
Tennessee Rule of Criminal Procedure 14(c)(1) provides a specific procedure when
severance is sought on the basis of “an out-of-court statement of a codefendant [which]
makes reference to the defendant but is not admissible against the defendant.” According
to the Advisory Commission Comments, this provision specifically addresses “the Bruton
issue . . . making severance unnecessary where no Bruton violation would follow, as
would be true, for example, where the confessing codefendant testifies or where redaction
eliminates any prejudice to the nonconfessing codefendant.” Tenn. R. Crim. P. 14,
Advisory Comm’n Cmt. (citing Bruton, 391 U.S. 123). Because codefendant Jackson
testified and was subject to cross-examination by Petitioner’s counsel, the admission of
his statement implicating Petitioner did not violate Bruton, and severance was not
required under Rule 14(c)(1). Petitioner has failed to show either deficiency or prejudice
and, therefore, is not entitled to relief.
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 C. Objection to State’s Closing Argument

Petitioner argues that trial counsel was ineffective for failing to object to certain
allegedly improper statements during the State’s closing argument and for failing to
request a mistrial based on those statements. Specifically, Petitioner points to the
following statements from the prosecutor’s closing argument and rebuttal:

[With regard to a Polo hat found on the scene and whether it
belonged to Little Tony or Mr. Withers:] Did you notice Little Tony[?] He
had on a Polo shirt. I would bet you a dollar to donuts that shirt was bought
last week. Right. I submit to you that that is a smoke screen. I do not
believe that story one bit. I submit that you should not either. . . . Sergeant
Mullins said [“]I just didn’t have any information that [the hat] had
anything to do with anything or I would have submitted it [for DNA
testing.”] Sergeant Mullins is a good officer. I think you saw him. He
would have done that if Little Tony said that was my hat.

....

[With regard to codefendant Jackson’s attorney’s argument that Mr.
White did not see the gun in Jackson’s hand:] His own client contradicts
his defense [by testifying that he was fighting with Mr. Withers]. Right.
You heard from the witnesses. You heard from Ms. Withers. You heard
from Kardell [Itson]. You heard from Mary Itson who were all out there.
And I think that the proof is very, very consistent . . . between those
eyewitnesses that whatever happened sort of went from here . . . That
everybody was very close together. And that his defense that Mr. Jackson
was fighting with Nico [White] and couldn’t have fired the shots is not
consistent.

....

[With regard to the argument that the victims were the first
aggressors:] This isn’t just a case of, whoa, my client is wrongfully
accused. I don’t think there’s any doubt they’re guilty. They created this
circumstance. And they can put all of this character evidence about [the
victims’ gang affiliation] . . . They have been trying to deceive you and
make you think that all gangsters should die.

The State responds that trial counsel made a strategic decision not to object to these
statements. Moreover, the State asserts that Petitioner cannot show that an objection to
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any of these statements would have affected the outcome of the trial. We agree with the
State.

In State v. Goltz, this Court recognized general areas of prosecutorial misconduct
in the context of closing argument, including expressing a “personal belief or opinion as
to the truth or falsity of any testimony or evidence or the guilt of the defendant.” 111
S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted). Additionally, a prosecutor
should not make comments that “reflect unfavorably upon defense counsel or the trial
tactics employed during the course of the trial.” Coker v. State, 911 S.W.2d 357, 368
(Tenn. Crim. App. 1995). However, this Court has previously recognized that “[t]he
decisions of a trial attorney as to whether to object to opposing counsel’s arguments are
often primarily tactical decisions.” Derek T. Payne, 2010 WL 161493, at *15. Indeed,
“attorneys may often choose not to object to damaging evidence for strategic reasons,
such as ‘to avoid emphasizing [the unfavorable evidence] to the jury.’” Id. (quoting
Gregory Paul Lance v. State, No. M2005-01765-CCA-R3-PC, 2006 WL 2380619, at *6
(Tenn. Crim. App. Aug. 16, 2006), perm. app. denied (Tenn. Dec. 18, 2006)); see also
Lemar Brooks v. State, No. M2010-02451-CCA-R3-PC, 2012 WL 112554, at *14 (Tenn.
Crim. App. Jan. 11, 2012), perm. app. denied (Tenn. May 16, 2012). Moreover, to
establish prejudice, the petitioner must show that the statements in closing argument were
“so inflammatory or improper that it affected the outcome of the trial to the defendant’s
prejudice.” Banks, 271 S.W.3d at 131.

Trial counsel testified that he did not object to each of the challenged statements
because he believed that an objection on “every little point” would risk “turn[ing] the
jurors off” and causing them to wonder if the defense was hiding something. Trial
counsel did not believe the phrase “smoke screen” was objectionable because it was
commonly used and because the prosecutor had prefaced the statement with “I submit.”
See Coker, 911 S.W.2d at 368 (noting that “if argument is predicated by the words ‘I
think’ or ‘I submit,’ it is unlikely to be adjudged as a personal opinion”). Trial counsel
further explained that if a particular statement did not hurt his case, he would not object
because of the risk of focusing the jurors’ attention on it. Trial counsel made a valid
strategic decision not to object to these statements and, therefore, did not render
constitutionally deficient performance. Moreover, we agree with the post-conviction
court’s determination that none of the statements were so inflammatory as to constitute
reversible error; thus, Petitioner did not suffer any prejudice from trial counsel’s failure to
object. See Banks, 271 S.W.3d at 131 (listing factors to consider when reviewing the
propriety of a prosecutor’s closing argument). Petitioner is not entitled to relief.

D. Motion for New Trial

Petitioner argues that trial counsel was ineffective for failing to file a timely
motion for new trial and that she is entitled to a delayed appeal. Petitioner relies on
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Wallace v. State, 121 S.W.3d 652, 657 (Tenn. 2003), for the proposition that the failure to
file a timely motion for new trial was not only deficient, but also presumptively
prejudicial. The State responds that because this Court considered the merits of
Petitioner’s claims on direct appeal beyond the sufficiency of the evidence, she is entitled
to neither a presumption of prejudice nor a delayed appeal. We agree with the State.

A motion for new trial must be filed “within thirty days of the date the order of
sentence is entered.” Tenn. R. Crim. P. 33(b). This provision is mandatory and
jurisdictional, and an untimely motion for new trial is a legal nullity. State v. Johnson,
980 S.W.2d 414, 418 (Tenn. Crim. App. 1998) (citing State v. Martin, 940 S.W.2d 567,
569 (Tenn. 1997)). Failure to file a timely motion for new trial risks waiver of issues on
appeal other than sufficiency of the evidence and sentencing. See Tenn. R. App. P. 3(e);
State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997) (citing State v. Givhan,
616 S.W.2d 612, 613 (Tenn. Crim. App. 1980)). A trial judge’s erroneous consideration
of an untimely motion for new trial does not validate the motion. Martin, 940 S.W.2d at
569 (citing State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989)).

The Post-Conviction Procedure Act allows for the granting of a delayed appeal or
a delayed motion for new trial if “the petitioner was denied the right to an appeal from
the original conviction.” T.C.A. § 40-30-113. In Wallace, the Tennessee Supreme Court
held that counsel’s failure to file a timely motion for new trial, thereby waiving all issues
on appeal except sufficiency of the evidence, “resulted in . . . the complete failure to
subject the State to the adversarial appellate process” and was, therefore, “presumptively
prejudicial.” Wallace, 121 S.W.3d at 658 (citing United States v. Cronic, 466 U.S. 648,
659 (1984)). “[W]hen ‘counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing,’ the process becomes ‘presumptively unreliable’ and
proof of actual prejudice is not required.” Id. at 657 (quoting Cronic, 466 U.S. at 659).
However, the Wallace court

decline[d] to adopt a per se rule regarding a trial counsel’s failure to file a
motion for new trial; instead, a petitioner in a post-conviction proceeding
must establish that he or she intended to file a motion for new trial and that
but for the deficient representation of counsel, a motion for new trial would
have been filed raising issues in addition to sufficiency of the evidence.

Id. at 659 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)). In other words, “the
key issue is [whether] the failure of trial counsel to file the specified pleading result[ed]
in the defendant being deprived of complete appellate review on direct appeal.” Id.

In this case, the post-conviction court found that trial counsel filed the motion for
new trial one day late. Despite the late filing, the motion was heard by the trial court. On
direct appeal, this Court noted the State’s argument that Petitioner’s severance issue
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should be waived due to the untimely motion for new trial. See Antonio Jackson and
Joletta Summers, 2014 WL 6200805, at *6. However, this Court did not rule on that
basis but considered the merits of both Petitioner’s severance and evidentiary issues. Id.
at *6-8. While the post-conviction court erred in concluding that the trial court’s review
of the untimely motion for new trial established that Petitioner was not prejudiced, see
Martin, 940 S.W.2d at 569, we conclude that Petitioner was not prejudiced because the
appellate court reviewed Petitioner’s issues beyond sufficiency of the evidence. Despite
the untimely motion for new trial, Petitioner was not “barred from pursuing issues on
appeal,” and the State’s case was “subjected to adversarial scrutiny upon appeal.” See
Wallace, 121 S.W.3d at 660. Petitioner’s allegation that trial counsel was ineffective for
failing to include certain issues on direct appeal—discussed further below—is not a basis
for presuming prejudice and granting a delayed appeal. See State v. Kenneth S. Griffin,
No. E2000-02471-CCA-R3CD, 2001 WL 710178, at *2 (Tenn. Crim. App. June 25,
2001), perm. app. denied (Tenn. Oct. 1, 2001).

E. Jury Instruction on Dangerous Felony

Petitioner argues that trial counsel was ineffective for failing to argue on appeal
that the trial court committed plain error by failing to specify which felony was to serve
as the underlying dangerous felony for the employment of a firearm charge.6
Specifically, Petitioner asserts that the jury instruction permitted the jury to consider non-
dangerous felonies and to potentially reach a non-unanimous verdict. The State responds
that Petitioner was not prejudiced by the instruction in light of the proof adduced and the
jury’s verdict during the initial guilt phase of the trial.

A criminal defendant is entitled to the effective assistance of counsel on direct
appeal. See Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995) (citing Evitts v. Lucey,
469 U.S. 387 (1985)). Like claims of ineffective assistance of trial counsel, claims of
ineffective assistance of appellate counsel are subject to the Strickland standard set forth
above. Id. In other words, a petitioner must establish both that appellate counsel was
deficient for failing to raise or preserve an issue on appeal and that there was a reasonable
probability that had the issue been properly raised, it “would have affected the result of
the appeal.” Id. at 597. However, an attorney is “not constitutionally required to raise
every conceivable issue on appeal,” and the determination of which issues to raise on
appeal are strategic decisions “within appellate counsel’s sound discretion” and “should

6
We note that trial counsel raised this issue in his untimely motion for new trial and testified at
the post-conviction hearing that he thought he also raised the issue on appeal. However, the very
confusing argument in the appellate brief focuses instead on the contention that because the lesser-
included offense of reckless endangerment includes the use of a deadly weapon as an essential element,
the associated greater felonies should have been statutorily disqualified from being the predicate
dangerous felony. See T.C.A. § 39-17-1324(c). This Court did not address this argument in our opinion.
See generally Antonio Jackson and Joletta Summers, 2014 WL 6200805.
- 17 -
be given considerable deference.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004)
(citations omitted). Ultimately, the petitioner must establish that the issue had some
merit; otherwise, counsel’s failure to raise it would not have been deficient and the
petitioner would have suffered no prejudice. Id.

The appellate issue in this case deals with the propriety of jury instructions. It is
well-recognized that a defendant in a criminal case “has a right to a correct and complete
charge of the law, so that each issue of fact raised by the evidence will be submitted to
the jury on proper instructions.” State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see
State v. Leath, 461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). When reviewing jury
instructions on appeal to determine whether they are erroneous, this Court must “review
the charge in its entirety and read it as a whole.” State v. Hodges, 944 S.W.2d 346, 352
(Tenn. 1997). A jury instruction is considered “prejudicially erroneous,” only “if it fails
to fairly submit the legal issues or if it misleads the jury as to the applicable law.” Id.
Because the propriety of jury instructions is a mixed question of law and fact, the
standard of review is de novo with no presumption of correctness. Carpenter, 126
S.W.3d at 892; State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

The trial in this case was bifurcated. The jury initially considered only the first
two counts of the indictment—second degree murder and attempted second degree
murder. The trial court instructed the jury on the lesser-included offenses of voluntary
manslaughter, reckless homicide, criminally negligent homicide, reckless endangerment,
and assault as well as facilitation and attempt. The jury was also instructed that its
verdict must be unanimous and that they had to acquit the defendants of the greater
charge before considering the lesser-included offenses. After the jury deliberated and
returned guilty verdicts on the lesser-included offenses of voluntary manslaughter and
attempted voluntary manslaughter, the trial court instructed them on the charge of
employment of a firearm during the commission of a dangerous felony. Specifically, the
trial court stated as follows:

To the members of the jury, you have now determined that the defendants,
Jo[]letta Summers and Antonio Jackson, one or both, are guilty of
committing a dangerous felony pursuant to Counts 1 and/or 2 . . . Any
person who employs a firearm during the commission of or attempt to
commit a dangerous offense is guilty of a crime. For you to find the
defendant guilty of this offense, the State must have proven beyond a
reasonable doubt the existence of the following essential elements:

That the defendant employed a firearm;

and that the employment was during the commission of or
attempt to commit a dangerous felony which means an
- 18 -
 attempt to commit second degree murder as defined in these
jury instructions;

or an attempt to commit voluntary manslaughter as defined in
these jury instructions;

or such other lesser included felony;

and that the defendant acted either intentionally, knowingly,
or recklessly.

The jury was again instructed that its verdict must be unanimous.

According to Petitioner, the trial court erred by failing to specify whether the
firearm charge attached to Count 1 or Count 2, potentially resulting in a non-unanimous
verdict. Additionally, Petitioner contends that the jury could have considered lesser-
included offenses, such as reckless homicide, that do not qualify as dangerous felonies
under the firearm statute. See T.C.A. § 39-17-1324(i)(1). Petitioner submits that because
trial counsel failed to file a timely motion for new trial, “his only hope would have been
to raise this issue as plain error on appeal.” See Tenn. R. App. P. 36(b) (“When
necessary to do substantial justice, an appellate court may consider an error that has
affected the substantial rights of a party at any time, even though the error was not raised
in the motion for new trial or assigned as error on appeal.”). We note that regardless of
whether this Court would have deemed the issue waived because of the untimely motion
for new trial, the issue would have also been waived because of trial counsel’s failure to
object at trial. See State v. Robinson, 146 S.W.3d 469, 489 (Tenn. 2004). Therefore, we
will determine whether the issue had any merit under plain error review.

There are five factors that must be established before this Court will recognize
plain error:

(a) the record clearly establishes what occurred in the trial court; (b) a clear
and unequivocal rule of law was breached; (c) a substantial right of the
accused was adversely affected; (d) the accused did not waive the right for
tactical reasons; and (e) consideration of the error is “necessary to do
substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (adopting the test established by State v.
Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The burden is on the
defendant to establish all five factors, and “complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be

- 19 -
established.” Id. at 283. Furthermore, the error must be of “such a great magnitude that
it probably changed the outcome of the trial.” Id.

In this case, there was no breach of a clear and unequivocal rule of law in this case
when the trial court failed to distinguish between the first two counts of the indictment as
the potential predicate felony. Petitioner relies upon a number of appellate cases that
were decided at the time her direct appeal was pending in which this Court held that it
was error for the trial court not to specify which predicate felony the jury should
consider. See, e.g., State v. Willie Duncan, No. W2013-02554-CCA-R3-CD, 2014 WL
4243746, at *10 (Tenn. Crim. App. Aug. 27, 2014), rev’d on other grounds, 505 S.W.3d
480 (Tenn. 2016); State v. Curtis Keller, No. W2012-00825-CCA-R3-CD, 2013 WL
3329032, at *5 (Tenn. Crim. App. June 27, 2013), perm. app. denied (Tenn. Dec. 10,
2013); State v. Martin Boyce, No. W2012-00887-CCA-R3-CD, 2013 WL 4027244, at
*13 (Tenn. Crim. App. Aug. 6, 2013), no perm. app. filed; State v. Trutonio Yancy, No.
W2011-01543-CCA-R3-CD, 2012 WL 4057369, at *8 (Tenn. Crim. App. Sept. 17,
2012), perm. app. denied (Tenn. Jan. 14, 2013); State v. Michael L. Powell, No. E2011-
00155-CCA-R3-CD, 2012 WL 1655279, at *15 (Tenn. Crim. App. May 10, 2012), no
perm. app. filed. However, as Petitioner concedes, these cases are distinguishable
because the respective juries may have convicted the defendant of a non-existent crime.
In each case, either the jury was not provided a definition of “dangerous felony” at all—
leading to the possibility that they considered a felony that is not defined as dangerous
under the firearm statute—or the instructions narrowed the potential predicate felonies
but erroneously included a felony that was disqualified because it contained the use of a
firearm as an essential element. See § T.C.A. 39-17-1324(c). In this case, because
Petitioner was convicted of only statutorily enumerated dangerous felonies that were not
disqualified, there is very little likelihood that the jury convicted Petitioner of a non-
existent crime, even with the trial court’s inclusion of the phrase “or such other lesser
included felony.” See State v. Ricky Duvil Lunsford, No. W2014-01926-CCA-R3-CD,
2016 WL 1756447, at *11-12 (Tenn. Crim. App. Apr. 29, 2016) (holding that the trial
court’s instruction that the jury could consider “attempted first degree murder or any
lesser included felony” as the underlying dangerous felony was harmless error because
the defendant was actually convicted of an enumerated dangerous felony), perm. app.
denied (Tenn. Sept. 27, 2016).7

From the jury instructions given in this case, it is clear that the jury was not given
free rein to consider any number of potential underlying felonies as suggested by
Petitioner. The trial court began its instruction on the employment of a firearm charge
with “you have now determined that the defendants . . . are guilty of committing a
7
We recognize that this case was not decided at the time Petitioner’s direct appeal was pending;
however, we agree with the rationale of Ricky Duvil Lunsford. Moreover, Petitioner merely asserts that
Ricky Duvil Lunsford was wrongly decided without elaboration and fails to provide any argument as to
why her case would have been decided differently.
- 20 -
dangerous felony.” The jury had already convicted Petitioner of voluntary manslaughter
and attempted voluntary manslaughter before they were instructed on the employment of
a firearm charge. In doing so, the jury had to first acquit her of attempted second degree
murder in both counts. Even though the trial court instructed the jury that they could
consider attempted second degree murder as the underlying felony, it is unlikely that they
did so because they had already determined that the State did not prove attempted second
degree murder beyond a reasonable doubt. Additionally, even though the completed
offense of voluntary manslaughter is defined as a dangerous felony, see T.C.A. § 39-17-
1324(i)(1)(C), the trial court specified “attempt to commit voluntary manslaughter” in its
instructions. See T.C.A. § 39-17-1324(i)(1)(M). Without knowing that the completed
offense of voluntary manslaughter in Count 1 was a statutorily enumerated dangerous
felony, it is reasonable to conclude that the jury considered only the attempted voluntary
manslaughter in Count 2 as the underlying dangerous felony. The jury was instructed
that its verdict had to be unanimous, and the jury is presumed to follow the instructions of
the trial court. See Banks, 271 S.W.3d at 134. Even if the inclusion of the phrase “or
such other lesser included felony” was error, it was harmless, see Ricky Duvil Lunsford,
2016 WL 1756447, at *11-12, and consideration of a harmless error would not be
necessary to do substantial justice. Petitioner has not established that this issue would
have merited plain error relief; thus, she has not established either that trial counsel was
deficient or that she was prejudiced by trial counsel’s failure to raise the issue on appeal.

Conclusion

Based upon our review, we affirm the judgment of the post-conviction court.

____________________________________
TIMOTHY L. EASTER, JUDGE

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