Ronald Donnell Moore v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 2, 2008 Session

RONALD DONNELL MOORE v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-18192 Carolyn Wade Blackett, Judge

No. W2008-00034-CCA-R3-PC - Filed May 20, 2009

The petitioner, Ronald Donnell Moore, appeals the judgment of the Shelby County Criminal Court

denying post-conviction relief. In 1994, the petitioner was convicted of first degree murder and

sentenced to life imprisonment. In seeking post-conviction relief on appeal, the petitioner argues

that he was denied his Sixth Amendment right to the effective assistance of counsel. Specifically,

the petitioner asserts that his counsel was ineffective: (1) in failing to seek proper jury instruction

on the burden of proof; (2) in failing to request jury instruction on the lesser-included offenses of

first degree murder, in particular, the offenses of reckless homicide and criminally negligent

homicide; and (3) in failing to object to the presence of a mannequin in the courtroom. After review,

the judgment of the court denying post-conviction relief is affirmed.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and CAMILLE

R. MCMULLEN , JJ., joined.

Marty B. McAffee and Vicki M. Carriker, Memphis, Tennessee, for the appellant, Ronald Donnell

Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Dennis Johnson and Thomas Henderson,

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

OPINION

BACKGROUND

This case represents a long procedural history. The petitioner was convicted of first degree

murder and sentenced to life imprisonment. This court affirmed the conviction on direct appeal.

State v. Ronald D. Moore, No. 02C01-9412-CR-00296, 1995 WL 555076 (Tenn. Crim. App., at

Jackson, Sept. 20, 1995), perm. app. denied (Tenn. Mar. 4, 1996). The facts of the case, as

established on direct appeal, are as follows:

The [petitioner] does not deny that on March 10, 1992, he shot the victim,

Daniel Miller, in the back outside of Cox’s Grocery Store. The state called Johnnie

Miller, the mother of the victim, to the stand, who testified that on the evening that

her son was killed the [petitioner] came to her home looking for her son. She stated

that the [petitioner] insisted that the victim had stolen a gun from him earlier in the

day, and that if he did not return it to the [petitioner], the [petitioner] would kill

Daniel Miller.

Kimberly Dobey, the sister of the victim, also testified that on the evening

prior to the murder, the [petitioner] and two others showed up at the home which she

shared with her mother and two brothers brandishing weapons and threatening to kill

the victim if he did not return the [petitioner’s] property to him that evening.

Dr. Jerry Francisco, medical examiner for Shelby County, testified that the

[victim] was shot in the back to the left of his spine, and that the bullet penetrated his

lung, and that the [victim] died from complications resulting from the gunshot wound

approximately ten days after the [petitioner] shot the victim.

Morris Cox, the owner of the grocery store where the shooting occurred,

testified that although he did not see the shooting, he was there the evening of the

shooting and heard one gunshot. He testified that the victim was attempting to come

into the grocery store when he was shot in the back. The shot to the victim’s back

caused the victim to fall halfway inside the grocery store and halfway out.

The brother of the victim, Bernard Miller, testified that he was at home with

his mother and his sister when the [petitioner] and two others came to his home

brandishing weapons and threatening to kill the victim if he did not return the

[petitioner’s] property that evening.

The jury heard from Keith Mosby, a close friend of the victim, who was at

the scene of the shooting. Mr. Mosby testified that he saw the victim arguing with

someone, and that he saw the [petitioner] turn around, grab the doorknob of the

grocery store, and then Mr. Mosby testified that he heard one gunshot.

James Albert Jones testified that he saw the [petitioner] hit the victim in the

face with the gun, which the [petitioner] later admitted to during the [petitioner’s]

direct testimony. Finally, the state called Ricky Davison to the stand. Mr. Davison

was an officer on patrol on the evening of the shooting. He testified that he

responded to a call from the victim’s sister in which she complained that the

[petitioner] and two others had shown up brandishing weapons.

The [petitioner] called two witnesses and testified himself as to the events of

the evening of the shooting. The jury first heard from Johnny Elzey, a friend of the

[petitioner], who testified that he was at the scene of the shooting and witnessed the

argument between the victim and the [petitioner], and that he heard two distinct

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gunshots. Mr. Elzey also testified that after the [petitioner] shot the victim, the

[petitioner] got back into Mr. Elzey’s car, and the two of them drove away.

The next witness to testify on behalf of the defense was Terrance Flemmons,

who subsequently revealed his true name as Willie Cooper. This witness testified

that he was near the scene of the shooting when it occurred, and that he heard two

gunshots as well. Further, he testified that he actually saw the [petitioner] shoot the

victim. He testified that he did not know the [petitioner] prior to being jailed in the

same area of the Memphis County Jail in February of 1994.

Finally, the jury heard from the [petitioner]. The [petitioner] testified that

earlier in the day the victim had been in a home where he frequented, and that he

believed that the victim had stolen a gun from his home. The [petitioner] admitted

that he did go to the home of the victim earlier in the day, but testified that he was

not threatening and did not display a weapon. The [petitioner] testified that he and

Mr. Elzey were driving past Cox’s Grocery Store when he saw the victim and asked

Mr. Elzey to stop the car. Whereupon, he proceeded to engage in an argument with

the victim over the missing gun. He admitted that he hit the victim in the face with

the weapon, but that shortly after that both he and the victim decided to walk away

from the argument. The [petitioner] testified that as he turned his back on the victim

and began to walk away he heard a gunshot and “instinctively turned and shot.”

The state called one rebuttal witness. Michael Bynum testified that his

nickname was “Hardface,” and he denied being at the shooting. This was important

because the [petitioner’s] earlier witness, Terrance Flemmons, had testified that he

had been standing on the street with several other men, including one with the

nickname “Hardface.”

Id. at *1-3.

The petitioner timely filed a pro se petition for post-conviction relief. Following two

appointments of counsel, minor amendments to the petitioner’s petition, and two evidentiary

hearings, the post-conviction court denied relief. This court summarized the proof presented as

follows:

Prior to the start of the proof, petitioner’s post-conviction counsel informed

the court that the petitioner told him that morning of the existence of two witnesses

that the petitioner required for his hearing. Counsel further explained that until the

morning of the hearing, he was unaware of their existence and unsure that he would

represent the petitioner because the petitioner had intended to employ private

counsel. The petitioner stated to the trial court that he could not understand why

post-conviction counsel did not know of these two witnesses since they were

mentioned by name in the amended petition filed by counsel. The trial court then

advised it would proceed to hear the testimony of the petitioner and his two former

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trial counsel and continue the hearing to allow petitioner to present his other

witnesses.

The petitioner also acknowledged that he intended to procure private counsel.

The petitioner testified that his ineffective assistance of counsel claim was based

primarily upon trial counsel’s failure to investigate the injury to the victim that

occurred in the Intensive Care Unit (ICU) of the hospital. The petitioner claimed that

the injury occurred when Cheryl Johnson and Lisa Watkins fought with each other

in the ICU. He contended this incident led to complications which ultimately caused

the victim’s death.

The petitioner’s first trial counsel with the Shelby County Public Defender’s

Office testified that the petitioner informed her of the hospital incident, but she felt

that the intervening cause defense had little chance of success and that petitioner’s

best trial strategy was voluntary manslaughter or self-defense. She did not recall

having made any effort to interview the two women. She testified that at first

petitioner seemed “okay” with this decision, but later “persisted on with the

intervening cause. And we disagreed.” The trial court subsequently granted her

request for withdrawal when she, near or on the day set for trial, learned that the

petitioner had filed a complaint against her with the Board of Professional

Responsibility.

The petitioner’s next appointed counsel . . . conceded that the petitioner

informed him of the hospital incident and requested that his defense be that the

victim died as a result of the hospital incident. Counsel did not interview the two

women allegedly involved in the altercation. Counsel stated that he discussed this

with the medical examiner, who insisted that the gunshot wound caused the death.

Counsel then discussed his disagreement with the petitioner regarding petitioner’s

proffered strategy. Counsel stated that after he explained his views against offering

such a defense, he could not say whether the petitioner agreed or disagreed.

Nevertheless, [Counsel] stated it was understood the two women would not testify.

Ronald Donnell Moore v. State, No. W1999-02125-CCA-R3-PC, 2001 WL 792612, *1-2 (Tenn.

Crim. App., at Jackson, July 13, 2001) (footnotes omitted). The post-conviction court scheduled a

hearing to permit the petitioner to bring in the two witnesses and for final arguments of counsel.

However, no further proof was presented at the scheduled hearing. Id. at *3-4. On appeal, this court

found certain procedural deficiencies and remanded the case for appointment of different counsel

to investigate the petitioner’s claim regarding the intervening-cause defense and to file an amended

petition alleging any other grounds for relief deemed appropriate, and for new evidentiary hearing.

Id. at *5. Upon remand, new counsel was appointed, the petition was amended, and two evidentiary

hearings were held on June 7, 2007, and September 14, 2007.

The following pertinent evidence was presented at the 2007 hearings. The petitioner

complained that his first appointed counsel did not make an effort to include lesser-included offenses

in the jury instruction, instead, counsel wanted to pursue theories of self-defense or heat of passion.

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The petitioner further asserted that his second appointed counsel, who ultimately represented him

at trial and on direct appeal, did not request lesser-included offenses because the defense strategy

was “all or nothing.” The petitioner recalled that he was initially in agreement with the “all or

nothing” defense strategy. However, the state requested that the jury be instructed on lesser-included

offenses, and the petitioner agreed to the additional instructions. As a result, the jury received

instructions on second degree murder and voluntary manslaughter. The petitioner stated that there

was no discussion on instructing the jury on the offenses of reckless homicide or criminally

negligent homicide, and he did not ask for instructions on offenses beyond voluntary manslaughter

because he was not well-versed in the law at the time of his trial.

The petitioner testified that he initially agreed on pursuing a theory of self-defense but

changed his mind when he learned that an incident at the hospital may have been the intervening

cause of the victim’s death. The petitioner claimed that he heard from the victim’s sister that “the

Med killed [her] brother.” The victim’s sister told him that the hospital initially informed the family

that the victim was going to pull through only to call a few days later to inform them that the victim

was going to die. Afterwards, people were saying that the petitioner should not be charged with first

degree murder because the victim did not die as a result of the gunshot wound inflicted by the

petitioner.

The petitioner claimed that his trial counsel failed to hire an investigator and failed to locate

two witnesses, Steve Moore, Jr., and Kimberley Dobey, who told the petitioner that two women got

into a fight standing over the victim at the hospital. The petitioner thought this information

supported an intervening cause theory and wanted to pursue the theory. However, trial counsel

rejected the petitioner’s suggestion and pushed for a theory of self-defense. The petitioner asserted

that he did not want to argue self-defense and wanted to argue voluntary manslaughter. The

petitioner acknowledged that his testimony at trial indicated that he had his back toward the victim

who did not have gun. The petitioner heard a shot and, in response, shot back. The petitioner

conceded that given his trial testimony a theory of self-defense made sense.

The petitioner testified that although the state discussed its burden of proof during voir dire,

he did not recall whether or not the trial court instructed the jury as to the burden of proof. The

petitioner stated that he reviewed the jury instructions in his case and did not see instructions on the

burden of proof. The petitioner stated that he could not recall whether or not trial counsel objected

to the court’s failure to instruct the jury on the burden of proof. He further stated that he did not

recall trial counsel raising the issue in the motion for new trial or on direct appeal. The petitioner

acknowledged that trial counsel discussed the burden of proof in his opening statements to the jury.

The petitioner asserted that prior to and during opening statements, the state engaged in

prosecutorial misconduct by having an “upper body torso of a mannequin with a hole in his back

pointed toward the jury. They never introduced this as an exhibit, yet it was there.” The petitioner

recalled that the mannequin was not utilized by state witnesses, nevertheless, its presence inflamed

the jury because it was not removed from the courtroom. The petitioner said he could not remember

if the mannequin was present in the courtroom after opening statements of the first day of his trial.

The petitioner acknowledged that his trial lasted three days.

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Regarding his intervening cause theory, the petitioner acknowledged that his post-conviction

counsel obtained the victim’s medical records, subpoenaed any incident report regarding an

altercation at the hospital where the victim was being treated, and attempted to locate the witnesses

to the alleged altercation at the hospital. The petitioner confirmed that there was no incident report

regarding a fight occurring near the victim at the hospital, and that the alleged witnesses could not

be located. The petitioner also admitted that the medical examiner testified at trial that the victim

died of a gunshot wound.

The petitioner’s trial counsel testified that he had practiced law for 33 years. He recalled that

he had difficulty speaking to witnesses so he hired an investigator to assist him with the investigation

of the petitioner’s case. Counsel further recalled that the petitioner told him that two women got into

a fight on opposite sides of the victim’s bed at the hospital. The petitioner believed that the victim

had died of “pneumonia by fighting” rather than by the gunshot wound. The petitioner wanted

counsel to be aware of the fight in order to use the information to cross-examine the medical

examiner and get him to admit that the fight occurred and may have caused the victim’s death.

Counsel recounted:

I asked [the petitioner] who the women were and he didn’t actually give me names

but he said he didn’t want them to testify anyway or that they were not going to

testify anyway. He simply wanted me to be aware of [the information] and to see if

I could get the medical examiner to agree . . . .

Counsel explained, however, that there was no good faith basis to question the medical examiner

about this as there was no proof to verify the hospital fight story. Counsel stated that the best

defense strategy in the petitioner’s case was self-defense. Counsel noted that at the time of trial the

petitioner was adamant that he shot the victim in self-defense. Counsel further noted that a defense

witness testified that he heard two shots fired.

Counsel testified that he discussed lesser-included offenses with the petitioner. Counsel said

that the defense believed at the time of trial that the proof did not support a conviction for first

degree murder; and therefore, the strategy was to go for an “all or nothing” verdict. However, the

state objected and the trial court added instructions on second degree murder and voluntary

manslaughter. Counsel noted that the case of State v. Burns had not been decided at the time of the

petitioner’s trial. Counsel testified that he did not notice any omission of burden of proof language

in the jury instruction given at the petitioner’s trial. Counsel also noted that he did not recall seeing

a mannequin in the courtroom.

The post-conviction court denied the petition for post-conviction relief by written order

entered November 30, 2007. The petitioner filed a timely notice of appeal.

STANDARD OF REVIEW

On appeal, this court is bound to the post-conviction court’s findings of fact unless the

evidence preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our

review of the post-conviction court’s factual findings is de novo with a presumption that the findings

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are correct. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction

court’s legal conclusions and application of law to facts is de novo without a presumption of

correctness. Id.

ANALYSIS

In the instant appeal, the petitioner has raised the single issue of ineffective assistance of

counsel. The petitioner claims that trial counsel’s representation was deficient because: (1) he did

not request a jury instruction regarding the state’s burden of proof, object to the court’s failure to

instruct on burden of proof, and did not raise the issue on appeal; (2) he failed to request jury

instructions on the lesser-included offenses of reckless homicide and criminally negligent homicide

and did not raise the issue on appeal; (3) he failed to object to the presence of a mannequin in the

courtroom.

To establish the ineffective assistance of counsel, the petitioner bears the burden of proving

that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the

defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington, 466

U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient

performance is shown if counsel’s conduct fell below an objective standard of reasonableness under

prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence

demanded of attorneys in criminal cases). A fair assessment of counsel’s 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; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). 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). The fact that a particular strategy or

tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,

938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that counsel’s representation fell

below a reasonable standard, the petitioner must also prove prejudice. Prejudice is shown if, but for

counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding

would have been different. Strickland, 466 U.S. at 694. Both deficient performance and prejudice

must be established to prove ineffective assistance of counsel. Id. at 697. If either element of

ineffective assistance of counsel has not been established, a court need not address the other element.

Id.

I.

As noted, the petitioner complains that his trial counsel did not object to the court’s failure

to instruct the jury on the burden of proof and did not raise the issue on direct appeal. Specifically,

the petitioner submits that no jury instruction was proffered making clear that the state had the

burden of proving his guilt beyond a reasonable doubt. In denying relief, the post conviction court

found the following:

Petitioner asserts that counsel was ineffective for failing to request jury instructions

on burden of proof, however, the trial court explained burden of proof to the jury in

both its written and oral instructions to the jury. Petitioner failed to overcome the

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presumption that trial counsel’s actions were within the wide range of reasonable

professional assistance.

Petitioner avers that counsel failed to properly raise objections. . . . It is . . . a

general rule that in evaluating claims of error as to jury instruction, the instruction

must be reviewed in its entirety and read as a whole. Petitioner’s argument focuses

solely on the jury instructions read to the jury by the trial judge on May 2 and 3,

1994, however, in the trial judge’s May 5, 1994 charge of law, the judge instructed

the jury several times that the State had the burden of proving beyond a reasonable

doubt the elements of the offenses for which the Petitioner was charged. In

Petitioner’s trial, the jury was properly instructed of the State’s burden of proof,

therefore, Petitioner did not show that counsel’s actions fell below an objective

standard of reasonableness. (Internal footnotes and citations omitted).

Our review of the record supports the post-conviction court’s findings. The jury instructions

included in the record reflect that the trial court referred to the state’s burden of proof when

discussing: the elements of the offenses, the identity of the petitioner as the perpetrator of the

charged offenses, the state’s burden in showing that the petitioner did not act in self-defense. In

addition, the trial court instructed the jury on the presumption of innocence and reasonable doubt as

follows:

You enter upon this investigation with the presumption that the defendant is not

guilty of any crime and this presumption stands as a witness for him until it is

rebutted and overturned by competent and credibly proof. It is, therefore, incumbent

upon the state, before they can - - before you can convict the defendant to establish

to your satisfaction beyond a reasonable doubt that the crime charged in the

indictment has been committed, and that the same was committed within the County

of Shelby and the State of Tennessee before the finding of this indictment, and that

the defendant at the bar committed t[h]e crime in such manner that would make him

guilty under the law heretofore defined and explained to you.

Reasonable doubt is that doubt engendered by an investigation of all the proof in the

case and an inability after such investigation, to let the mind rest easily upon the

certainty of guilt. Reasonable doubt does not mean a doubt that may arise from

possibility. Absolute certainty of guilt is not demanded by the law to convict of any

criminal charge but moral certainty is required, and this certainty is required as to

every proposition of proof requisite to constitute the offense.

The trial court’s instruction was a correct statement of law regarding the presumption of innocence

and reasonable doubt. See, e.g., State v. Hall, 976 S.W.2d 121, 159 (Tenn. 1998); State v. Bush, 942

S.W.2d 489, 521 (Tenn. 1997); Arterburn v. State, 391 S.W.2d 648, 656 (Tenn. 1965). It is clear

from the record that the jury instruction read in its entirety did not mislead the jury as to the state’s

burden of proving the petitioner’s guilt beyond a reasonable doubt. See State v. Faulkner, 154

S.W.3d 48, 58 (Tenn. 2005). As such, the petitioner has neither proven that counsel was deficient

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in failing to request additional particularized instruction on the state’s burden of proof nor

demonstrated that the outcome of the trial would have been different had additional instruction been

given.

Likewise, the petitioner has not proven that counsel was ineffective in failing to raise the

issue on appeal. Counsel is not constitutionally required to raise every conceivable issue on appeal,

and the determination of which issues to raise is generally within counsel’s sound discretion.

Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004). If an issue has no merit or is weak, counsel’s

performance will not be deficient for failure to raise it, and the petitioner will have suffered no

prejudice. Id. As set forth, the petitioner did not prove counsel was ineffective in raising this issue

at trial; therefore, it follows that counsel was not ineffective in failing to raise the issue on appeal.

The petitioner is not entitled to relief.

II.

The petitioner next asserts that counsel was ineffective for failing to request a proper jury

instruction for the offenses of reckless homicide and criminally negligent homicide or to allege this

error in the motion for new trial, or pursue the issue on appeal. The petitioner concedes that the law

as set forth in State v. Burns, 6 S.W.3d 453 (Tenn. 1999) does not apply to his trial and direct appeal.

Addressing the petitioner’s complaint, the post-conviction court made the following findings:

At the hearing for the Petition for Post-Conviction Relief, Counsel testified that a

jury instruction regarding the lesser included offenses of reckless or negligent

homicide would not support [the petitioner’s] self-defense argument. Petitioner has

not established that Counsel’s failure to request jury instruction on the lesser

included offenses was not sound trial strategy within the wide range of reasonable

professional assistance.

Upon review, we initially note that the issue of lesser-included offenses is controlled by the

prevailing law at the time of trial. Wiley v. State, 183 S.W.3d 317, 328 (Tenn. 2006). At the time

of the petitioner’s trial, it was the “the duty of all judges . . . 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.” Tenn. Code Ann. § 40-18-110(a)(1979). In State v. Page, 184 S.W.3d 223, 229 (Tenn. 2006),

our supreme court observed that:

Under this prior version of section 40-18-110, a defendant was not required to

request a lesser-included instruction to assign as error the trial court’s failure to give

such instruction. Therefore, all a defendant need do to assign error to a trial court’s

failure to instruct on a lesser-included offense was to raise that issue on appeal.

Because the trial court had a mandatory duty to instruct the jury regardless of a request to do so, this

court has consistently held that trial counsel was not ineffective for failing to request an instruction

on a particular lesser included offense. See, e.g., Larry Johnson v. State, No.

W2006-00345-CCA-R3-PC, 2007 WL 2120184 (Tenn. Crim. App. July 24, 2007), perm. app.

denied (Tenn. Dec. 26, 2007); Jerome Sawyer v. State, No. W2005-01813-CCA-R3-PC, 2007 WL

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778828 (Tenn. Crim. App., at Jackson, Mar. 15, 2007); Chivous Robinson v. State, No.

E2005-01036-CCA-R3-PC, 2006 WL 1381511 (Tenn. Crim. App., at Knoxville, May, 19, 2006),

perm. app. denied (Tenn. Oct. 2, 2006); Jeffery Lee Miller v. State, No. M2003-02841-CCA-R3-PC,

2005 WL 901130 (Tenn. Crim. App., at Nashville, Apr. 19, 2005), perm. app. denied (Tenn. Oct.

17, 2005).

Also, as found by the post-conviction court, the petitioner’s trial counsel testified that lesser-

included instructions were not requested by the defense for tactical reasons. Counsel explained that

the petitioner was adamant that he shot the victim in self-defense. Therefore, the strategy was to

argue self-defense and go for an “all or nothing” verdict. The petitioner’s case was tried and

appealed prior to the issuance of the Burns decision. It is not sound policy for this court to

second-guess counsel through the distortions of hindsight. “Allegations of ineffective assistance of

counsel relating to matters of trial strategy or tactics do not provide a basis for post-conviction

relief.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991). Accordingly, we conclude

that the petitioner failed to demonstrate deficient performance of counsel as announced in

Strickland.

Likewise, the petitioner has not demonstrated deficiency regarding counsel’s failure to raise

as error on appeal the lack of jury instruction on reckless homicide and criminally negligent

homicide. Again, counsel is not required to raise “every conceivable issue” on appeal and is

afforded “considerable deference” in determining appellate strategy. Carpenter, 126 S.W.3d at 887.

The petitioner’s direct appeal reflects that counsel’s primary challenge was to the sufficiency of the

convicting evidence. Undoubtably, this issue was raised in light of trial strategy and the petitioner’s

testimony regarding self-defense. Moreover, to obtain relief on the basis of ineffective assistance

of counsel, the petitioner must also demonstrate a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. The evidence at trial

clearly reflects that the petitioner sought out the victim and threatened repeatedly to kill the victim

while brandishing a gun. Thereafter, the petitioner confronted the victim and intentionally shot him

in the back at point blank range. Based on this evidence, the jury found the petitioner guilty of first

degree murder despite being instructed on second degree murder and voluntary manslaughter.

Consequently, the petitioner has not proven that (1) counsel’s conduct fell outside the wide range

of reasonable professional conduct for attorneys at the time of appeal; or (2) a reasonable probability

that the outcome of the proceedings would have been different had the jury been instructed on

reckless homicide and criminally negligent homicide. The petitioner is not entitled to relief.

III.

The petitioner next alleges that trial counsel failed to provide effective assistance of counsel

by not objecting to the presence of a mannequin in the courtroom. The petitioner claims that the

mannequin had a hole in its back and its presence prejudiced his trial.

Upon review, we conclude that the petitioner has failed to prove his allegation of fact by clear

and convincing evidence. The petitioner alleged that he observed a mannequin in the courtroom

during opening statements of his trial. However, contrary to the petitioner’s allegation, counsel

stated that he did not recall seeing a mannequin in the courtroom. Also, the petitioner has failed to

include the transcript of the trial in the appellate record, and there is nothing in the available record

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indicating that a mannequin was present in the courtroom. Additionally, the petitioner does not

provide any evidence that the jury saw the mannequin or that it inflamed the jury so as to prejudice

his trial. Accordingly, the petitioner has failed to establish his claim in this regard. The issue is

without merit

CONCLUSION

Based on the aforementioned reasoning and authorities, we conclude that the petitioner failed

to prove that he received the ineffective assistance of counsel. Therefore, we affirm the denial of

post-conviction relief.

___________________________________

J.C. McLIN, JUDGE

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