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State v. Wilmoth11/6/2003
effective because counsel failed to argue the case, failed to cross-examine prosecution witnesses, and conceded guilt of a lesser-included offense. The state counters these claims by positing that the defendant has waived the ineffectiveness issue by failing to include it in his motion for new trial and by presenting an insufficient appellate record for review of the issue. Alternatively, the state argues that, based upon the record, counsel's representation satisfied constitutional standards. We agree with the state that the issue has been waived, and moreover, we believe that our pretermission of the issue better serves the defendant's interests.
To be sure, the defendant was constitutionally entitled to effective representation by counsel. See generally Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The burden rests upon the defendant to establish a claim of ineffective assistance of counsel by clear and convincing evidence, whether he presents his claim in a petition for post-conviction relief or on direct appeal of his conviction. Tenn. Code Ann. § 40-30-110(f) (2003); State v. Burns, 6 S.W.3d 453, 461-62 n.5 (Tenn. 1999).
The Tennessee appellate courts have repeatedly said that a claim of ineffective assistance of counsel is best presented in a petition for post-conviction relief. See, e.g., State v. Honeycutt, 54 S.W.3d 762, 766 n.3 (Tenn. 2001); State v. Anderson, 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992). We have cautioned that raising the issue "for the first time in the appellate court is a practice fraught with peril." Anderson, 835 S.W.2d at 606. The peril associated with the practice has two dimensions. First, ineffective assistance can rarely be established without an evidentiary hearing. See Strickland, 466 U.S. at 689-90, 694, 104 S. Ct. at 2065, 2067. Of course, post-conviction procedures afford an evidentiary hearing to a petitioner with colorable claims. See Tenn. Code Ann. §§ 40-30-109(a), -110 (2003). Second, raising the issue in the direct appeal could result not only in losing on appeal, but also in barring the claimant from raising the issue later in the post-conviction arena. See id. § 40-30-206(f), (h) (1997) (providing for dismissal of post-conviction claims that have been previously determined).
In the present case, we hold that the defendant has waived the issue on appeal because he failed to include it in his motion for new trial. See Tenn. R. App. P. 3(e). Via this holding, the defendant is not foreclosed from raising the issue in a petition for post-conviction relief. See Kirby George Wallace, No. 01C01-9308-CC-00275, slip op. at 5-7 (Tenn. Crim. App., Nashville, Sept. 15, 1994).
In his next issue, the defendant claims that the evidence is insufficient to support his convictions. We must disagree.
To assess the sufficiency of the convicting evidence, the appellate court determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Shaw, 37 S.W.3d 900, 902-03 (Tenn. 2001); State v. Keough, 18 S.W.3d 175, 180-81 (Tenn. 2000). The appellate court affords the prosecution the strongest legitimate view of the evidence and the benefit of all reasonable and legitimate inferences which may be drawn from the evidence, and we defer to the trier of fact to weigh the evidence and to resolve factual issues, including credibility issues. Shaw, 37 S.W.3d at 902-03.
A person commits attempted second-degree murder who, intending to kill another, engages in conduct that constitutes a substantial step toward knowingly killing the other person. Tenn. Code Ann. § 39-13-210(
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