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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
November 6, 2001 Session ANTHONY RICHARDSON v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County No. P-21728 Chris Craft, Judge

No. W2000-01438-CCA-R3-PC - Filed February 7, 2002

Petitioner, Anthony Richardson, was convicted of first-degree murder in the Shelby County Criminal Court. This Court affirmed the conviction on direct appeal. See State v. Richardson, 995 S.W.2d 119 (Tenn. Crim. App. 1998). Petitioner filed a petition for post conviction relief, which the postconviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issues: (1) whether the trial court's comments during a witness' testimony deprived him of his sixth amendment right to a jury trial; (2) whether Petitioner was denied his sixth amendment right to a jury trial when the trial court "forced" counsel to proceed to trial; (3) whether the prosecutor's biblical reference at trial constituted reversible error; and (4) whether there was a conflict of interest when the same judge presided at both his trial and post-conviction hearing. After a thorough review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed. THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G. RILEY, J., joined. Gerald Stanley Green, Memphis, Tennessee (on appeal) and John Finklea, Memphis, Tennessee (at trial) for the appellant, Anthony Richardson. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Elaine Sanders, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION I. Background In the direct appeal of Petitioner's conviction, this Court summarized the facts as follows: On June 1, 1994, Terry Gilliard, the victim, was shot to death at the LeMoyne Gardens Apartments in Memphis, Tennessee. The victim was shot by two separate individuals, Appellant and Earline Jackson. The two shootings were apparently unrelated. Appellant testified that earlier that day, he fought with victim, left the scene, and retrieved a gun that he had hidden nearby. When he returned, he saw something being passed between the victim and his friends. Afraid for his life, Appellant testified that he shot the victim in self-defense. After Appellant fled the scene, witnesses testified that Earline Jackson also shot the victim additional times. The medical examiner testified that shots from each weapon were fatal. Appellant and Earline Jackson were charged with first degree murder. On August 6, 1999, Petitioner filed a pro se petition for post conviction relief, raising numerous claims including ineffective assistance of counsel and trial court error. Subsequently, the post-conviction court appointed counsel to assist Petitioner. Appointed counsel filed a total of three amended petitions alleging specific instances of ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief to the Petitioner, entering its written findings of fact and conclusions of law on May 9, 2000. Subsequently, Petitioner filed a timely notice of appeal to this Court. II. Post-Conviction Hearing

At the post-conviction hearing, the trial court heard testimony from Petitioner and Petitioner's trial counsel, Joseph Ozment. Petitioner testified that he filed the instant petition based upon the ineffective assistance of counsel. Petitioner testified that trial counsel should have objected to the entry of autopsy photographs at trial. Petitioner described the autopsy photographs of the victim's gunshot wounds as "gross." In support of his claim, Petitioner testified that the trial court was reluctant to present the photographs to the jury before lunch. Furthermore, Petitioner claimed that the photographs were not relevant. Petitioner stated that before the photographs were admitted, the medical examiner testified extensively about the location of the victim's gunshot wounds, using the prosecutor as a mannequin. Petitioner also testified that the photographs were not admitted for identification purposes because previously, the medical examiner identified the victim in a separate photograph. Petitioner claimed that the photographs were admitted solely to inflame the jury. Petitioner further testified that trial counsel failed to object to the trial court's comments on the testimony of a witness called by the defense. Petitioner testified that in order to prove selfdefense, it was necessary to show that the victim, or someone close to the victim, was carrying a weapon. Petitioner testified that on direct examination, a witness named Mr. Flynn stated that he was with the victim when Petitioner began shooting and Flynn testified that, "I -- we ran to the left, -2-

and he [Petitioner] was, you know, he was still coming at us. Then I shot right back through -- it was a little opening in the side of the wall. I ran back through there." However, Petitioner testified that on cross-examination Mr. Flynn recanted his statement that "I shot right back through." In response, the trial court stated, "he [Mr. Flynn] said, `I shot back through this way.' I took it to mean he ran that way.'" Petitioner claimed that the trial court's statement was an improper comment on the evidence. Petitioner testified that Mr. Flynn's testimony supported his theory of self-defense, and that absent the court's comments, he might have had a stronger argument for self-defense. Petitioner further testified that trial counsel should have continued the trial to a later date. Petitioner claimed that a few days before trial, counsel admitted that he was not a "hundred percent" because his wife was in the midst of a difficult pregnancy and his brother was hospitalized. Petitioner stated that he asked counsel to continue the trial. Petitioner admitted that counsel made one attempt to continue the trial, but claims that he should have tried again. Furthermore, Petitioner testified that the court might have been persuaded to continue the trial if counsel had explained his family difficulties as the reason for the continuance. Petitioner admitted that trial counsel stated "he was going to try to give his all," and that counsel gave his all to a certain extent. On crossexamination, Petitioner admitted that he did not believe that trial counsel was deficient because he was not ready. Petitioner further testified that he wanted to negotiate a plea agreement, but counsel failed to present a written offer. Petitioner claimed that before the trial began, counsel presented him with a potential twenty-year plea agreement. However, Petitioner claimed that when counsel presented him with the agreement form, it was blank. Petitioner testified that counsel told him to sign the blank agreement, and then, he would try to negotiate a twenty-year plea bargain. Petitioner testified that he would have accepted the twenty-year agreement if it was in writing. In addition, Petitioner further stated that the trial court refused to accept the plea. Petitioner further testified that the prosecutor's reference to a scripture passage at trial was unduly prejudicial. Petitioner, through his post-conviction counsel, acknowledged that this issue was addressed by the appellate court. The State presented testimony from Petitioner's trial counsel, Joseph Ozment. Counsel testified that any objection to the entry of the autopsy photographs would have been "fruitless." Counsel testified that the photographs were "extremely mild" with "[n]othing grotesque about them." Counsel testified that based on his appellate experience, the autopsy photographs, which depicted each fatal wound, were relevant to the State's burden of proof. Counsel also testified that autopsy photographs are usually admitted even though the medical examiner used demonstrative evidence, such as a mannequin, for an illustration. Counsel further testified that he chose not to object to the trial court's comments on Mr. Flynn's testimony because the court's interpretation was fair. Furthermore, counsel testified that he addressed this issue through cross-examination, and probably argued it during closing arguments. Counsel also testified that on the day of trial, he was prepared to proceed as scheduled. Counsel acknowledged that the trial court provided adequate time and resources to prepare for trial. -3-

Counsel testified that on the day of trial, the trial was delayed for over an hour for plea negotiations, which, although attempted, proved unsuccessful. Counsel stated that Petitioner refused to accept a negotiated plea agreement. Counsel refuted Petitioner's claims that he requested a continuance, or that he was issued blank paperwork during plea negotiations. Finally, counsel acknowledged that during Petitioner's trial his brother was hospitalized and his wife was experiencing a difficult pregnancy. However, counsel testified that although it might have been "more convenient" if the trial date was postponed, his personal affairs did not affect his representation of Petitioner, his performance at trial, or the trial's outcome. At the conclusion of the evidentiary hearing, the post-conviction court denied Petitioner relief in a written order. The post-conviction court found that Petitioner failed to prove the allegations in his petition by clear and convincing evidence. The trial court further determined that Petitioner had not established a valid claim of ineffective assistance of counsel. III. Analysis

In order to obtain post-conviction relief a petitioner must allege that his conviction or sentence is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann.

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