William Edward Watkins v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Jackson March 2, 2010

WILLIAM EDWARD WATKINS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Maury County

No. 8282 Robert Jones, Judge

No. M2008-02098-CCA-R3-PC - Filed November 23, 2010

The Petitioner, William Edward Watkins, appeals the Maury County Circuit Court’s denial

of his petition for post-conviction relief from his convictions for two counts of first degree

felony murder and one count of attempted aggravated robbery, for which he is serving

consecutive life sentences plus three years. In this appeal, the Petitioner contends that he is

entitled to post-conviction relief because trial counsel was ineffective for failing to request

the jury instructions on lesser included offenses and for failing to raise the issue in his

motion for new trial in order to preserve the issue for appellate relief. We affirm the

judgment of the post-conviction court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT

W ILLIAMS and A LAN E. G LENN, JJ., joined.

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant, William Edward

Watkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; T. Michel Bottoms, District Attorney General; and Kimberly L. Fields Cooper,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On August 25, 1995, the Petitioner was convicted of the first degree felony murders

of Lamont Orr and Elizabeth Smith and the attempted aggravated robbery of Elwood Sinson.

His convictions and sentences were affirmed on appeal. State v. William Edward Watkins

and Jonathan Davis, No. 01C01-9701-CCA-R3-CD, Maury County (Tenn. Crim. App. Dec.

12, 1997), app. denied (Tenn. Sept. 21, 1998). The Petitioner filed a petition for post-

conviction relief on September 21, 1999, and after the appointment of counsel, an amended

petition was filed. The court conducted an evidentiary hearing on July 9, 2008.1

This court’s opinion on direct appeal states the facts of the Petitioner’s convictions:

On March 28, 1994, [the Petitioner] borrowed a gun

from Lamont Orr. He met some friends at Columbia Gardens

Apartments, and they began discussing a proposed plan to rob

the Richland Inn. [Co-defendant] Davis approached the group

and agreed to rob the Richland Inn. [The Petitioner] gave Davis

the .22 caliber handgun and a ski mask, and they both walked

towards the motel. The others in the group decided that they

did not want to participate in any criminal activity and stayed

behind.

Elwood Sinson, a guest at the Richland Inn, was meeting

a business associate in his room on the ground floor. As he was

waiting for his associate to open the door, he saw Davis jump

from a brick wall on the side of the parking lot and walk

towards him. Davis quickened his speed and aimed the gun at

Sinson and said, “your money or your life.” Sinson was able to

get inside the motel room before Davis could do anything

further.

After the failed robbery attempt at the Richland Inn, [the

Petitioner] and Davis decided to rob Lamont Orr. They went to

Orr’s trailer, where he lived with his girlfriend, Elizabeth Smith.

Orr left with them when [the Petitioner] and Davis told him that

they were going to participate in a cocaine transaction. Orr

drove [the Petitioner] and Davis to the parking lot of Brown’s

School. Upon arrival at the parking lot, Davis without any

provocation shot Orr in the head. Orr was also shot a second

time in the head and died as a result of these wounds. Although

Orr was seen with 15-20 rocks of crack cocaine earlier that day,

no drugs were found on his person after his death.

1

The record suggests that the cause for the delay was that the Petitioner’s original appointed counsel

was temporarily suspended from the practice of law at some point, and other counsel was appointed to

represent him.

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Because Smith had seen Orr leave with them, [the

Petitioner] and Davis returned to the trailer. Smith was fatally

shot once in the head. Earlier that evening, Smith was seen

with $100. No money was found at the trailer after the

homicide, and there was also evidence that some cocaine was

missing from the trailer. Davis was subsequently seen wearing

rings which he claimed he had taken from Smith.

[The Petitioner] was arrested two days later on an

unrelated forgery charge. After being questioned on the

murders, [the Petitioner] gave a statement implicating himself

and Davis in the attempted robbery of Sinson and the homicides

of Orr and Smith. Davis subsequently confessed to the crimes

as well.

Id., slip op. at 2-3.

At the post-conviction hearing, the Petitioner testified regarding the issues raised in

his petition. He first alleged that counsel should have objected to the admissibility of his and

his co-defendant’s statements and redactions to those statements. He said his statement was

coerced and that both his and his co-defendant’s statements were untruthful. He said that

he thought the redacted portions of the statements would have helped his defense and that

counsel never provided him with a clear understanding of why some parts could be admitted

and others could not. He acknowledged that the trial court denied his motion to suppress.

The Petitioner also testified that counsel failed to call several witnesses whom he

wanted to testify at trial. Those witnesses included his grandmother, who would have

testified about his state of mind and character; Jimmy Lowe, Leslie Carr, and Richard

Cushing, who were present or nearby during the commission of the offenses and would have

testified about the extent of his involvement; and Donny Ragsdale, who was the Petitioner’s

former cellmate and had claimed the Petitioner made inculpatory statements to him. The

Petitioner acknowledged that there was a jury-out hearing at which Mr. Ragsdale testified

for the Petitioner’s co-defendant and that the trial court ruled that Mr. Ragsdale’s testimony

was inadmissible. The Petitioner said that he wanted counsel to recall Mr. Ragsdale and

inquire into the reason the witness was willing to lie about the Petitioner but that counsel did

not do so.

The Petitioner testified that counsel failed to communicate adequately with him or

meet often enough to discuss his case. He said someone from the public defender’s office

visited him to prepare for trial two or three times for an hour or an hour and a half each time.

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He said that he tried to communicate with the public defender’s office through his

grandmother but that the attorneys were out of town or in court when she called the office.

He acknowledged that his attorney explained the basic trial strategy to him, although he said

it was two or three days into the trial.

The Petitioner testified that he wanted to testify at trial to explain and minimize his

involvement in the offenses but that counsel said, “We’ll see” and never discussed it. The

Petitioner claimed that Detective Don Rose was to blame for his participation in the robbery

and murder. He said that Detective Rose questioned him about a forgery charge just days

before the offenses. He theorized that had Detective Rose arrested him on the forgery

charge, he would have been in jail and unable to be involved in the offenses.

On cross-examination, the Petitioner testified that he did not remember meeting with

an investigator from his attorneys’ office the day after he was arrested or having a

preliminary hearing. The Petitioner said he met with his attorneys only three times before

trial, but he could not recall the dates of those meetings. The Petitioner did not remember

that his friend, L.J. Carr, testified for him at trial regarding the co-defendant’s actions after

the shooting. The Petitioner said he had wanted his grandmother to testify about the type

of person he was and about the incident. He claimed he told her everything that happened.

He acknowledged that his grandmother was not present during the offenses. He further

elaborated that he wanted his grandmother to testify about his arrest and whether the police

had a warrant. Despite his earlier acknowledgment that the trial court denied his motion to

suppress his statement, he claimed that he did not remember that a suppression hearing was

held regarding the arrest and his statement but that he would not be surprised if one took

place.

The Petitioner testified that Jimmy Lowe would have been able to testify as to how

the Petitioner looked during and after the offenses, but he acknowledged that Lowe also

would have been able to testify that the Petitioner planned the robbery and gave Davis the

gun and ski mask. The Petitioner stated that he wanted to call Donny Ragsdale to ask him

why he was going to lie and say the Petitioner admitted his involvement, but he

acknowledged that Ragsdale testified during a jury-out hearing that he was not getting

anything in exchange for his testimony. The Petitioner said that he discussed with his

attorneys which witnesses he wanted called and what their testimony would have been, but

they “didn’t get down to Q and A.”

Asked if he was not able to meet with his attorneys very often because he escaped

from jail, the Petitioner admitted that he escaped from jail two times between his arrest and

trial. He admitted that the second time, he was confined in Florida and was gone from the

Maury County Jail for almost two months and did not get back until ten days before trial.

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The Petitioner said he did not contact his attorneys during the time he was in Florida because

they did not accept collect calls. With regard to his testimony on direct examination that he

wanted to testify at trial, the Petitioner admitted that, had he testified, he would have been

cross-examined regarding the fact that he and his co-defendant split the money from the

robbery and the cocaine taken from one of victims. He also acknowledged that he would

have had to admit that he planned the robbery and provided the co-defendant with a map and

gun.

The Petitioner’s trial counsel testified that in 1994 and 1995, she was the acting

public defender for the 22nd Judicial District and represented the Petitioner. She testified

to the preparations she undertook before trial and recalled that the Petitioner was unavailable

for a period of at least two months because he escaped from jail twice. She recalled that

approximately four days after the Petitioner escaped, he was in jail in Florida. She said that

she wrote a letter to the public defender in Florida asking that the Petitioner call her collect.

She said that she talked to the Petitioner and that he told her to pursue the pretrial motions

in his absence.

Trial counsel testified that co-counsel argued a motion to suppress the Petitioner’s

statement and that the Petitioner was not a good witness. Trial counsel said that the

Petitioner’s claim that his attorneys only met with him three times was false. She stated that

her understanding of the witnesses the Petitioner mentioned was that they were not involved

in the offenses but “were basically in a house that [the Petitioner] went to, after both

homicides had occurred.” Trial counsel said that there was no favorable testimony that

could be gained from any of the potential witnesses and that she was not aware that the

Petitioner asked her to call them.

Trial counsel testified that she would not have gone to trial without the Petitioner

signing a written waiver of his right to testify. She said that if the Petitioner did not testify,

“that was his choice.” Counsel noted that at the time of trial, her understanding was that

second degree murder was not a lesser-included offense of felony murder.

On cross-examination, trial counsel stated that she did not have specific recollection

of any conversations with any of the Petitioner’s potential witnesses but that her normal

practice was to try to talk to any witness who might be a benefit to her client. Trial counsel

acknowledged that she did not have a specific recollection of whether the Petitioner signed

a written waiver of his right to testify and that there was not a waiver in the file. She

explained that many things were missing from the file and that the file was out of her

possession once she left the public defender’s office.

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On redirect examination, trial counsel read from a memorandum of an interview she

had with the Petitioner in preparation for trial, in which she noted that the Petitioner “was

emphatic that Richard [Cushing] and Jimmy [Lowe] [were] not involved in the murder.”

She said that based on that information, there was no reason to investigate those witnesses.

The Petitioner’s co-counsel testified that he worked for the public defender’s office

in 1994 and 1995 and represented the Petitioner. He did not recall the Petitioner’s saying

that they needed to call the witnesses mentioned by the Petitioner during his testimony. Co-

counsel said that Mr. Carr was the one witness they evaluated who they thought would add

to the Petitioner’s case. Co-counsel stated that they were never told that Mr. Cushing and

Mr. Lowe were present at any time after the robbery plan was made between the Petitioner

and the co-defendant. Co-counsel testified that he was certain he went over the Petitioner’s

right to testify and the ramifications of testifying and that the Petitioner said on more than

one occasion that he did not want to testify.

Co-counsel testified that the transcript reflected that he urged the court to give a

lesser-included offense instruction on criminally negligent homicide and especially

aggravated robbery, but the court only gave a lesser-included instruction on reckless

homicide. Co-counsel said that he did not think he requested an instruction on second

degree murder because the controlling law at the time held that second degree murder was

not a lesser-included offense of felony murder. He also noted that at the time, felony murder

contained a reckless element and that he did not want to suggest to the jury through a second

degree murder instruction that the Petitioner acted knowingly. He explained that the trial

strategy was to demonstrate that although the Petitioner participated in the robbery, he had

no idea his co-defendant would kill the victims. He said that based on this court’s opinion

in State v. Wayne M. Trusty, which had not yet been reversed by the Tennessee Supreme

Court, they requested lesser included offense instructions for felony murder on the offenses

of especially aggravated robbery and aggravated robbery. See State v. Wayne M. Trusty,

No. 02C01-9307-CR-00170, Shelby County (Tenn. Crim. App. Oct. 12, 1994), rev’d, 919

S.W.2d 305 (Tenn. 1996). He said this strategy was more consistent with the facts of the

case. He said they also requested an instruction for facilitation of felony murder, but the

request was denied.

Co-counsel testified that they repeatedly tried to have the Petitioner’s case severed

from his co-defendant’s but that the court denied the requests. One result of that denial was

that the Petitioner’s statement had to be redacted because it implicated the co-defendant.

Co-counsel stated that another attorney took over the case after the ruling on the motion for

new trial.

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After the hearing, the post-conviction court denied relief, finding that the Petitioner’s

complaint about his statement being redacted was previously litigated; the Petitioner did not

carry his burden of proof regarding the allegation that counsel met with him an inadequate

amount of time; counsel was not ineffective for not calling the Petitioner’s grandmother to

testify at trial because her hearsay testimony would not have been admissible; counsel was

not ineffective for not calling Donny Ragsdale who was “a loose cannon . . . [and] already

inclined to give testimony detrimental to the [Petitioner]”; counsel was not ineffective for

failing to call Jimmy Lowe, who could have implicated the Petitioner by placing him at the

scene; counsel’s failure to call Leslie Carr was not prejudicial because her testimony would

not have been helpful to the Petitioner; and, accrediting the testimony of counsel, that the

Petitioner did not carry his burden of proving that he did not waive his right to testify. With

regard to the issues relevant to this appeal, the post-conviction court found that the trial court

was not in error for failing to charge, nor was counsel ineffective for failing to request,

instructions on the lesser-included offenses of felony murder because “such was not required

at the time.”

The burden in a post-conviction proceeding is on the Petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103.

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72

(1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). The performance prong requires a petitioner raising a claim of ineffectiveness

to show that the counsel’s representation fell below an objective standard of reasonableness

or “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at

690. The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Failure to satisfy either prong results in the

denial of relief. Id. at 697.

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In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were

within the range of competence demanded of attorneys in criminal cases. Further, the court

stated that the range of competence was to be measured by the duties and criteria set forth

in Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v.

DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing counsel’s conduct,

a “fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,

466 U.S. at 689. “Thus, the fact that a particular strategy or tactic failed or even hurt the

defense does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847

S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical

choices if they are informed ones based upon adequate preparation. Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

The Petitioner contends that he is entitled to post-conviction relief based upon trial

counsel’s failure to request lesser included offense instructions for second degree murder,

facilitation of felony murder, and criminally negligent homicide, and that counsel was

ineffective for failing to preserve the issues for appellate review by raising them in the

motion for a new trial because they would have been reversible error on appeal. The State

counters that the Petitioner has not shown error in the trial court’s denial of post-conviction

relief. We agree with the State.

Because our inquiry involves evaluating trial counsel’s performance at the time of the

trial and the motion for new trial, we will evaluate their decisions under the law of lesser

included offenses as it existed at the time of counsel’s actions or inactions. See Wiley v.

State, 183 S.W.3d 317, 326 (Tenn. 2006) (evaluating a petitioner’s post-conviction claim

of ineffective assistance of counsel in failing to request lesser included offense instructions

by reviewing counsel’s actions in light of the law of lesser included offenses as it existed at

the time of the trial). First, a review of the pertinent dates is in order. The Petitioner

committed the offenses on March 28, 1994. He was convicted on August 25, 1995, and he

was sentenced on October 30, 1995. He filed an amended motion for new trial on July 24,

1996, and it was denied on August 13, 1996. The Petitioner filed his notice of appeal on

August 13, 1996. This court’s opinion on direct appeal was filed on December 12, 1997,

and the Tennessee Supreme Court denied permission to appeal on September 21, 1998.

When the Petitioner’s offenses occurred, felony murder required a “reckless” killing

in the perpetration of, or attempt to perpetrate, an enumerated felony. T.C.A. § 39-13-202

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(1991).2 Second degree murder required a “knowing killing of another.” T.C.A. §

39-13-210 (1991).

The trial court had the duty to charge the jury on all of the law that applied to the facts

of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing State v. Thompson,

519 S.W.2d 789, 792 (Tenn. 1975)). Anything short of a complete charge would have denied

the Petitioner his constitutional right to a trial by jury. See State v. McAfee, 737 S.W.2d 304,

308 (Tenn. Crim. App. 1987). At the time of the offense and the Petitioner’s trial, the Code

provided:

It is the duty of all judges charging juries in cases of criminal

prosecutions for any felony wherein two (2) or more grades or

classes of offense may be included in the indictment, to charge

the jury as to all of the law of each offense included in the

indictment, without any request on the part of the defendant to

do so.

T.C.A. § 40-18-110(a) (1997) (amended 2001, 2009).

Less than six months before the Petitioner’s trial, this court held that under State v.

Howard, second degree murder was not a lesser included offense of felony murder because

second degree murder required a higher “knowing” culpable mental state than the “reckless”

mens rea of felony murder. See State v. Gilliam, 901 S.W.2d 385, 390-91 (Tenn. Crim.

App. 1995) (applying the test of Howard v. State, 578 S.W.2d 83 (Tenn. 1979)); see also

Wayne M. Trusty, slip op., rev’d, 919 S.W.2d 305 (Tenn. 1996). Thus, in the Petitioner’s

case, trial counsel’s failure to request a lesser included offense instruction on second degree

murder was in accord with the law as it existed at the time of the trial. Trial counsel and co-

counsel testified that their understanding of the law was that second degree murder was not

a lesser included offense of felony murder. Co-counsel also said that the applicable version

of the felony murder statute required a “reckless” mental state, and had they requested a

lesser included offense instruction on second degree murder, the defense would have been

asking the jury to find a more culpable mental state for second degree murder than was

required for the greater, charged offense of felony murder. Co-counsel said that the defense

strategy was to show that the Petitioner may have been aware that he was going to be part

of a robbery but that he had no knowledge a killing was going to take place. He said that

this was the basis for requesting lesser included offense instructions for the felony murder

counts of especially aggravated robbery and aggravated robbery, which he said was in

2

The General Assembly amended Tennessee Code Annotated section 39-13-202(a)(2), effective July

1, 1995, to remove the “reckless” language from the statute.

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accord with this court’s Wayne M. Trusty and Gilliam decisions. We hold that the trial court

did not err in finding that the law at the time of the trial did not support a second degree

murder instruction. The Petitioner is not entitled to relief on this basis.

With respect to the Petitioner’s allegation that counsel should have requested lesser

included offense instructions on facilitation of felony murder and criminally negligent

homicide, co-counsel testified that he requested a facilitation of felony murder instruction.

In addition, the record of the Petitioner’s direct appeal, which was made an exhibit at the

post-conviction hearing, reflects that co-counsel requested an instruction on criminal

responsibility for facilitation of felony murder and criminally negligent homicide, both of

which the trial court denied, although the court gave an instruction on reckless homicide.

Because the record belies the Petitioner’s claim that trial counsel did not request instructions

on facilitation of felony murder and criminally negligent homicide, the Petitioner failed to

demonstrate that he is entitled to relief.

We now consider the Petitioner’s allegation that he was entitled to post-conviction

relief because trial counsel was ineffective in failing to raise issues in the motion for new

trial regarding the trial court’s failure to instruct the jury on the lesser included offenses of

second degree murder, facilitation of felony murder, and criminally negligent homicide. On

direct appeal, the Petitioner contended that the trial court erred in failing to instruct the jury

on second degree murder. This court held that the issue was waived because it was not

raised in the motion for new trial. See State v. William Edward Watkins and Jonathan

Davis, slip op. The issue was not raised on direct appeal with respect to the failure to

instruct on facilitation of felony murder and criminally negligent homicide.

After the Petitioner’s trial and before the motion for new trial was adjudicated, the

Tennessee Supreme Court held in State v. Trusty that a defendant was entitled to jury

instructions on all lesser included offenses and on all lesser grades or classes of the offense

charged if the evidence would support a conviction for the offense. 919 S.W.2d 305, 311

(Tenn. 1996). Thus, Trusty encompassed offenses meeting the lesser-included offense

definition from Howard as well as offenses located in the same statutory chapter and part

of the Tennessee Code. Id.

We note that the supreme court’s Trusty decision did not address second degree

murder as a lesser included offense of felony murder. See generally id. It was not until after

the Petitioner’s direct appeal was final that the Tennessee Supreme Court held that second

degree murder was a lesser grade offense of felony murder under Trusty. See State v. Ely,

48 S.W.3d 710, 722-23 (Tenn. 2001); see also Wiley, 183 S.W.3d at 326 (stating that second

degree murder was a lesser grade of homicide under Trusty). Even though Trusty provided

the basis for an instruction on second degree as a lesser included offense of felony murder,

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the supreme court also said that instructions on lesser included offenses were required only

“if the evidence supports guilt on those offenses.” Trusty, 919 S.W.2d at 311. According

to co-counsel’s testimony, the defense theory was that the Petitioner had no knowledge the

killings were going to take place. We fail to see how trial counsel can be said to be deficient

for failing to seek a new trial on the basis of an omitted jury instruction that was inconsistent

with the defense theory and the trial proof.

We also note that there was no direct proof at the post-conviction hearing about why

trial counsel did not include the issue in the motion for new trial. Given the lack of evidence

at the hearing that his attorneys disregarded or failed to consider the impact of the supreme

court’s Trusty ruling when they drafted the motion for new trial, we conclude that the trial

court did not err in finding that the Petitioner failed to carry his burden of proving that

counsel was deficient in failing to raise the second degree murder instruction issue in the

motion for new trial.

With respect to the Petitioner’s allegation of ineffective assistance related to trial

counsel’s failure to seek a new trial on the basis that the Petitioner was entitled to an

instruction for facilitation of felony murder, we note that contrary to the Petitioner’s

argument, the amended motion for new trial raised the issue. The Petitioner’s claim that

counsel did not raise the issue is unsupported by the facts in the record, and he is not entitled

to relief.

We consider last the Petitioner’s allegation that trial counsel should have raised an

issue in the motion for new trial that the trial court erred by failing to give a criminally

negligent homicide instruction. The Petitioner makes no argument beyond a general

allegation of counsel’s ineffectiveness. In any event, the law at the time provided that no

lesser included offense instruction was required when the evidence supported either the

existence of the greater offense or no offense at all. See, e.g., Moorman v. State, 577

S.W.2d 473, 475 (Tenn. 1978). In this case, the Petitioner admitted his guilt of the robberies

that were the predicate felonies for the two felony murder counts. The fact that the victims

were killed was undisputed. The trial proof supported either a conviction of felony murder

based upon homicides taking place as a part of the predicate robberies or an acquittal based

upon a finding that the homicides and the admitted robberies were unrelated. Because the

proof would not have supported the trial court’s giving a criminally negligent homicide

instruction, trial counsel cannot be said to have been ineffective in failing to seek a new trial

on this basis. The Petitioner is not entitled to post-conviction relief on this basis.

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In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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