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Blackwell v. State2/12/2003
Googe and Taylor testified at the post-conviction hearing that they repeatedly prepared the petitioner to testify, asking him direct examination questions and potential cross-examination questions. In the petitioner's own testimony at the post-conviction hearing, he conceded that counsel would often ask him questions, but "I never knew that they were actually preparing me to testify." However, the petitioner also admitted that counsel told him "the majority" of the questions that they would ask and that he knew the answers to those questions. The trial court found that counsel "did what was reasonably proper to prepare the petitioner to testify in this case," implicitly accrediting the testimony of counsel. See Jay A. Cameron v. State, No. M1998-00005-CCA-R3-CD, 2000 WL 1209450, at *4 (Tenn. Crim. App. at Nashville, Aug. 18, 2000), perm. to appeal denied, (Tenn. 2001). We likewise conclude that counsel were not deficient in preparing the petitioner to testify at trial. Additionally, the petitioner has not established that he was prejudiced by any alleged failure. See King David Johnson v. State, No. M2000-02756-CCA-R3-PC, 2001 WL 1103434, at *2 (Tenn. Crim. App. at Nashville, Sept. 20, 2001). This issue is without merit.
The petitioner next contends that counsel were ineffective in failing to raise in his motion for new trial the issue of improper jury instructions as to the range of punishment, thereby waiving this issue on appeal. The petitioner summarily alleges that " ad it been properly preserved, the jury instruction issue would likely have been a ground upon which relief should have been granted." At the time of the petitioner's trial, "either the defendant or the State could request the trial court to charge the jury on the range of punishment for a criminal offense." State v. Isaac Milholen, No. 02C01-9810-CC-00316, 1999 WL 562214, at *4 (Tenn. Crim. App. at Jackson, Aug. 3, 1999); see also Tenn. Code Ann. § 40-35-201(b)(1) (1997). On direct appeal, this court noted that any complaint as to the jury instruction on range of punishment was waived by the petitioner's failure to include the issue in the motion for new trial. Blackwell, No. 02C01-9712-CC-00469, 1998 WL 902597, at *8. This court further observed that the issue did not qualify as plain error. Id. The trial court did instruct the jury on the possible length of sentences for the charged offense and the lesser-included offenses; however, the trial court did not instruct on any possible release eligibility. At the post-conviction hearing, trial counsel explained that they made a strategic decision not to request an instruction regarding the release eligibility for each offense because counsel feared such an instruction would encourage the jury to ignore any lesser-included offenses. Because counsel made the strategic decision to exclude the release eligibility instruction, they were precluded from raising the issue in the motion for new trial. This court may not "second guess" counsel's tactical or strategic choices made in the course of trial. Hellard, 629 S.W.2d at 9. The petitioner has not proven by clear and convincing evidence that counsel were deficient in making this strategic choice. The petitioner is not entitled to relief on this issue.
Finally, the petitioner contends that his appellate counsel were ineffective in failing to comply with Tennessee Rule of Appellate Procedure 14 in seeking this court's review of Dr. Shull's deposition. In support of his argument, the petitioner alludes to this court's opinion on direct appeal, in which we stated, "We decline to accept the defendant's request to review this deposition, since this evidence was not contemplated by Rules 13(c) and 14 of the Tennessee Rules of Appellate Procedure."
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