State v. Derrick Garrin

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 21, 1998
• Docket: 02C01-9707-CR-00272
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED JULY 1998 SESSION August 21, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk DERRICK K. GARRIN, ) NO. 02C01-9707-CR-00272 ) Appellant, ) SHELBY COUNTY No. P-17200 ) VS. ) HON. JOSEPH B. DAILEY, ) JUDGE STATE OF TENNESSEE, ) ) AFFIRMED - RULE 20 Appellee. )

ORDER

This is a post-conviction matter. The petitioner was originally convicted by

a jury of two (2) counts of felony murder and two (2) counts of attempted second

degree murder. He received an effective sentence of life imprisonment plus

twenty-one (21) years. This court subsequently affirmed those convictions.

State v. Derrick K. Garrin, C.C.A. No. 02C01-9501-CR-00028, Shelby County

(Tenn. Crim. App. filed May 24, 1996, at Jackson).

The petitioner complains that he was deprived of effective assistance of

counsel at both the trial and appellate levels. The petitioner alleges counsel was

deficient for: (1) failing to effectively cross-examine a state’s witness, (2) failing to

call certain witnesses, and (3) failing to present mitigating evidence at his

sentencing hearing. Further, petitioner complains appellate counsel failed to

properly challenge the “moral certainty” jury charge, and the post-conviction court

committed plain error when it refused to provide him with a portion of the trial

transcript during the post-conviction hearing in order to contest a “dynamite” jury

charge.

With regard to the ineffective assistance of counsel claim, we find the

petitioner fails to present even a colorable claim of deficient representation. The

trial court found the petitioner received “outstanding representation.” The

evidence does not preponderate otherwise. Any alleged error regarding the “moral certainty” jury charge was waived

by the failure to present it on direct appeal. Furthermore, the “moral certainty”

jury charge was proper. See Carter v. State, 958 S.W.2d 620, 626 (Tenn. 1997).

Likewise, any alleged error regarding a “dynamite” jury charge was waived

by the failure to present it on direct appeal. Further, this allegation is not set

forth in the petition or amended petition; thus, the post-conviction court properly

refused to consider it. See Tenn. Code Ann. § 40-30-210(c).

After thoroughly reviewing the record, the briefs, and the law governing

the issues presented by the petitioner, we conclude the evidence does not

preponderate against the findings of the trial court that the petitioner received

effective assistance of counsel. Further, no error of law requiring a reversal of

judgment is apparent. Accordingly, pursuant to Rule 20 of the Tennessee Court

of Criminal Appeals, we affirm the judgment of the trial court. Costs are taxed to

the state as the appellant is indigent.

All of which is so ordered.

_________________________ JOE G. RILEY, JUDGE

_________________________ CURWOOD WITT, JUDGE

_________________________ ROBERT W. WEDEMEYER, SPECIAL JUDGE