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Blackwell v. State2/12/2003
in relation to his Batson claim. This issue is without merit.
The petitioner next argues that trial counsel were ineffective in failing to remove Maness from the jury because he "was previously involved in [the petitioner's] juvenile court prosecution." Furthermore, the petitioner contends that " eaving [Maness,] the manager of the prosecuting hotel [,] on the jury was not a tactical or strategic decision; it was lack of preparation." We disagree.
Both Taylor and Googe testified at the post-conviction hearing that they felt Maness would be a valuable juror because of his previous experience working in bars. As the fight underlying the petitioner's charge began in a bar, the attorneys felt that Maness would be more understanding of the petitioner's plight. In fact, due to Maness' previous bar experience, Googe felt that Maness might be a "ringer" on the jury. Therefore, the decision to keep Maness as a juror was clearly tactical. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
Further, Maness' name was not included on the juvenile court judgment against the petitioner or in the police report. Thus, there is no proof in the record that Maness was active in the prosecution of the petitioner as a juvenile. Notably, Maness' name only appeared on the property receipt acknowledging the return of the stolen VCR. Googe testified that unless a conviction was specifically an issue at trial, it was not his practice to obtain property receipts or juvenile records. Based upon the record before us, we conclude that counsel were not ineffective for failing to obtain the property receipt. Furthermore, both the petitioner and Maness testified at the post-conviction hearing that they did not recognize each other. Maness specifically maintained that he based his decision to convict the petitioner solely upon the proof he heard at trial. See Hershell Lee Kinnaird v. State, No. M2000-00037-CCA-R3-PC, 2001 WL 881371, at *11 (Tenn. Crim. App. at Nashville, Aug. 7, 2001), perm. to appeal denied, (Tenn. 2001). Accordingly, the petitioner has failed to prove prejudice in connection with this issue.
In arguing that trial counsel failed to develop a reasonable trial strategy, the petitioner specifically complains that counsel did not know the difference between the mental states of intentional and knowing. The petitioner's dissatisfaction relates to Googe's closing argument in which he repeatedly argued that the killing was neither "knowing" nor "intentional," thus confusing the jury. In sum, the petitioner complains that counsel erred by arguing that the petitioner did not intend to kill the victim because second degree murder, the charged offense, required only a knowing mental state.
At the post-conviction hearing, Googe stated that he simultaneously discussed knowing and intentional mental states. He explained that "to some extent" he was attempting to speak "in layman's terms." Additionally, Googe was attempting to gain an acquittal for the petitioner by arguing against the lesser-included offense of voluntary manslaughter, which requires either an intentional or knowing mental state. Moreover, the trial court interrupted Googe's closing argument to explain to the jury that "the instructions [on second degree murder] will only refer to the word knowing. But, again, the word intentional does include knowing." The trial court later instructed the jury correctly on the applicable mental states for each offense charged. See State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). Again, the petitioner has failed to establish counsel's deficiency and any resulting prejudice.
The petitioner also complains that trial counsel failed to fully prepare him to testify at trial. Both
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