State v. Danny Patrick

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997 FILED March 2, 1998 DANNY PATRICK, ) C.C.A. NO. 02C01-9701-CC-00041 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appe llant, ) ) ) DYER COUNTY VS. ) ) HON. JOE G. RILEY STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

VANEDDA PRINCE JOHN KNOX WALKUP P. O. Box 26 Attorney General and Reporter Union City, TN 38281 DEB ORA H A. T ULLIS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

PHILIP BIVENS District Attorney General

JAMES E. LANIER Assistant District Attorney P. O. Box E Dyersburg, TN 38025

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

Appellant Danny Patrick appeals the trial court's denial of his petition for post-conviction relief. He presents the following issues for review: (1) whether the trial court erred in holding that Appellant received effective assistance of coun sel; and (2) whether the trial court erred in concluding that its "re ason able doub t" jury inst ruction was c onstitu tional.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTUAL BACKGROUND

Appellant wa s convicted by a jury in the Dyer C ounty Circu it Court of the first degree murder of Michael Ross. He received a sentence of life imprisonment with the Te nnes see D epartm ent of C orrect ion. O n Dec emb er 11, 1 991, th is Court affirmed the conv iction and senten ce. State v. Danny Patrick, C.C.A. No. 02C01-9105-CC-00103, Dyer County (Tenn. Crim. App., Jackson, December 11, 1991). In Appellant’s first petition for post-conviction relief, the trial court determined that Appellant's counsel failed to inform him of his right to appeal from this Court to the Tennessee Supreme Court. On February 15, 1 995, th is Court vacated and reinstated its earlier opinion of December 11, 19 91 to e nable Appellant to file a d elayed appe al. The Tennessee Supreme Court denied Appellant's application for permission to appeal on July 3, 1995.

On April 24, 1996, Appellant filed a motion to reope n his petition for post-conviction relief. The trial court ap pointed couns el for App ellant. App ellant, with the aid of cou nsel, filed an amend ed petition on Ju ly 2, 1996. The trial court conducted an evidentiary hearing. After that hearing, the court concluded that Appe llant's trial counsel performed well within the range of competence and that

-2 -Appellant had not demonstrated the manner in which he was prejudiced by the alleged deficiencies in counsel's performance. The court also determined that the "reasonable doubt" jury instruction used at Appe llant's trial was cons titutiona l. Finding that Ap pellan t's issue s had no m erit, the c ourt dis miss ed Ap pellan t's petition for post-conviction relief on August 23, 1996.

Specifically, Appellant alleges the following deficiencies in his counsel's representation:

(1) Fa ilure to in terview Bobb y McM ullin prio r to trial; (2) Failure to advis e App ellant th at it would be necessary for him to testify in ord er to pres ent proo f regardin g the victim's reputation for violence; and (3) Failure to adequately explain to Appellant his potential sentence and eligibility for parole.

POST-CONVICTION RELIEF

Appellant contends that the trial court erred in de nying his p etition for po stconviction relief based upon Appellant's allega tion that he received the ineffective assistance of counsel and that the jury charge on "rea sona ble do ubt" giv en at h is trial was unco nstitutio nal.

In post-conviction proceedings, the Appellant bears the burden of proving the allegations raised in the petition by a preponderance of the evidence. Tidw ell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995). Moreo ver, the trial court's findings of fact are conclusive on appeal unless the evidenc e prepo nderate s agains t the judgm ent. Tidw ell, 922 S.W .2d at 500 ; Cam pbell v. State, 904 S.W.2d 594, 595-96 (Tenn. 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

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EFFECTIVE ASSISTANCE OF COUNSEL

Appe llant's first contention is that the trial court erred in finding that Appe llant rec eived th e effec tive ass istanc e of co unse l.

The Sixth Amendment provides in part, "In all criminal prosecutions, the accused shall enjoy the righ t. . . to have the as sistan ce of c ouns el for his defens e." U.S. Const. amend. 6. Similarly, the Tennessee Constitution guarantees an accused "the right to be heard by hims elf and his couns el. . . " Tenn. Const. a rt. I § 9. In Strickland v. Washington, the United States Supreme Court articulated a two-prong test for courts to employ in evaluating claims of ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Tennessee Supreme Court adopted Strickland's two-p art test in Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began its analysis by noting that "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 104 S.Ct. at 2064. When a convicted defendant challenges the effective assistance of counsel in a post-conviction proceeding, the Appellant bears the burden of establishing (1) deficient representation of counsel and (2) prejudice resulting from that deficiency. Strickland, 104 S.C t. at 2064; Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). Appellant must prove that counsel's representation fell below an objective standard of reaso nablen ess. Strickland, 104 S.C t. at 2064. Th is Court is not requ ired to con sider the tw o prong s of Strickland in any particular orde r. Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). "Moreover, if the Appellant fails to establish one prong, a reviewing court need not consider the other." Id. With reg ard to counsel's deficient performance, the proper m easure

-4 -is that of reasonableness under prevailing professio nal norm s. Id. (citing Strickland, 104 S.C t. at 2065. Put differen tly, counsel's performance is required to be "within the rang e of comp etence dem anded of a ttorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Harris , 947 S.W.2d at 163. Respecting the prejudice prong of Strickland, the Appellant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the procee ding would h ave been d ifferent. A reas onab le prob ability is a probab ility sufficient to u nderm ine confid ence in th e outco me." Strickland, 104 S.Ct. at 2068.

The Strickland Cour t emp hasiz ed tha t "Judic ial scru tiny of co unse l's performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . . requires that every e ffort be m ade to e liminate the distorting effects of h indsight, to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to evaluate the co nduc t from c ouns el's perspective at the time .'" Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 2065). T he mere failure of a partic ular tac tic or stra tegy do es no t per se estab lish un reaso nable representation. Id. at 369 . How ever, th is Cou rt will defer to counsel's tactical and strategic choices only where those choices are informed ones predicated upon adequ ate prepara tion. Goad, 938 S.W.2d at 369; Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1 982).

Appe llant's first allegation of deficient performance on the part of the trial counsel concerns the failure to conduct a pre-trial interview of the witness, M r. Bobby McMullin. According to Appellant, if his lawyer had interviewed Mr. Bobby McM ullin before Appellant's trial, the attorney would not have presented that testimony during trial. P aradoxic ally, in his brief, Appellant admits that "McM ullin's testimony was not even necessary to prove [Appellant] was

-5 -intoxicated beca use [a nothe r witnes s] had already testified as to that fa ct." Through McMullin's testimony, defense counsel intended to dem onstrate that, due to App ellant's intoxica tion, he did not poss ess the re quisite intent to com mit first degree murder. However, Bobby McMullin did not testify as anticipated. McM ullin testified that although Appellant had been drinking on the evening of the incident, he did not appear to be intoxicated. At Appellant's post-conviction hearing, Appellant's attorney, William Randolph, admitted that he would not have called Mr. Mc Mullin to testify at tr ial if he had known that McMullin would say that Appellant did not appear intoxicated on the evening of the offense. Mr. Randolph explained that his rou tine practice is always to cond uct an interview with eve ry prospective witness before trial. Mr. Randolph also stated that although he had "no independent recollection" of interviewing Mr. McMullin prior to trial, he believed that he ha d done so.

It seem s unlike ly that Mr. Randolph would have departed from his standard procedure of talking with witnesses before presenting their testimony at tria l. Further, given Appellant's admission in his brief that McMullin's testimony was not necessa ry to prove intoxication, the trial court properly concluded that Appellant failed to demonstrate prejudice as a result of McM ullin's testimony, and failed to establish that the outcome of the trial would have been different had McMullin not testified. Th is allegation is without m erit.

Respecting Appe llant's second alleged deficiency, Appellant testified at the post-conviction hearing that he was not aware that his testimony would be necessa ry in order to present evidence of Michael Ross' reputation for violence. Appellant further testified that he would have te stified h ad he know n that th is would be the on ly mean s of prese nting evide nce of the victim's history of violence. Additionally, Appellant explain ed that on e reaso n for his refu sal to

-6 -testify at his trial was that he felt that his trial was not fair. At the post-conviction hearing, Mr. Randolph explained the dilemma concerning whether or not Appe llant should testify. On th e one h and, de fense co unsel w anted to demo nstrate that Michael Ross was the true agg ressor. However, Mr. Randolph had advised Appellant not to testify because of his lengthy criminal record. Defense couns el opined that it "would have be en she ar stupidity to have put [Appellant] on the stand." Mr. Randolph stated that he permitted Appellant to make the ultimate choice a bout whethe r or not to testify. Finally, Mr. Randolph testified that he attemp ted to get into the reco rd the victim's prior convictions but was n ot suc cess ful.

In its order denying Appellant's petition, the court emphasized that Appellant had appro ximately fifteen prior conviction s. The reco rd buttresses Mr. Randolph's testimony that he m ade a va lid tactical an d strateg ic decision to advise Appella nt not to tes tify in his own behalf. Moreover, we cannot conclude that Mr. Randolph's advice prejudiced the outcome of Appe llant's trial. T his allegation is also witho ut merit.

Finally, we find no m erit in Appellant's claim that Mr. Randolph neglected to adeq uately e xplain A ppella nt's eligibility for parole and that this misinformation affected Appella nt's decisio n to elect a jury trial instead of accepting the Sta te's plea offer. In particular, Appellant asserts that he did not understand the precise nature of a life sentence. Appellant testified at his post-conviction hearing that trial counsel's investigator misinformed him that he could be paroled after serving eight years of a life sente nce. Appellant further testified that "My understanding was a life sentence was 13 yea rs" and that he tho ught that a life senten ce always consisted of thirteen years. Mr. Randolph testified that he was certain that he and Appella nt discus sed the amou nt of time th at Appe llant would serve with a life

-7 -sentence. Mr. Randolph recalled that he stro ngly advis ed App ellant not to go to trial and to accept the State's plea offer of a twenty-year sentence as a Range I standard offen der in exchan ge for pleading guilty to second de gree mu rder.

The trial cou rt prop erly con clude d that tria l counsel did not mislead Appellant as to the n ature of a life senten ce. Mr. R andolp h placed on the trial record the prosecution's plea offer of twenty years for second degree murder and Appe llant's express refusal to a ccept tha t offer. Although A ppella nt initially accepted the State's plea offer, he later rejected it in open court at the hearin g in which he was to plead guilty. Against the advice of his attorney, Appellant opted to go to trial. T his allega tion is withou t merit. CONSTITUTIONALITY OF "REASONABLE DOUBT" JURY INSTRUCTION

Lastly, Appellant contends that the "reasonable doubt" jury instruction given at his trial con travenes his federa l and state constitutional due process rights and tha t the trial court e rred in up holding th e constitutionality of the jury charge. Specifically, he asserts that this jury instruction implies a lower standard of proof than that required by due process. We disagree.

At Appellant's trial, the court charged the jury as follows:

Reaso nable doubt is that dou bt engend ered by an investigation of all the p roof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a captious, possible, or imag inary dou bt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but m oral certainty is re quired , and th is certa inty is required as to every proposition of proof req uisite to con stitute the offense.

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Both the Tennessee Supreme Cour t and th is Cou rt previo usly ha ve uph eld the constitutionality of a verba tim jury instruction on the m eanin g of "rea sona ble doubt," finding such a jury charge to comport with both federal and state due process protection s. Jame s David C arter v. State , 1997 WL 641595, slip op. at 6-7 (Tenn . 1997); Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn. Crim. App. 1994). The T enne ssee Supr eme Cour t held in State v. Nich ols that "the use of the phrase `moral certainty' by itself is insufficient to invalidate an instruction on the meaning of reasonable dou bt." 877 S .W.2 d 722, 7 34 (Te nn. 199 4).In Nicho ls, the court deemed it essential that the language employed in a jury charge clearly con vey "the jury's respon sibility to decide the verdict based on the facts and the law." Id.

The instruction given at Appellant's trial unambiguously conveyed the jury's respon sibility and d id not vio late Ap pellan t's due process rights under either the Fifth and Fo urteenth Ame ndme nts to the Un ited State s Cons titution or Artic le I, § 8 of the Tennessee Constitution. The trial court properly concluded that the "reaso nable doub t" jury ch arge g iven at A ppella nt's trial w as co nstitutio nal.

W e hold that the trial court properly dismissed Appellant's petition. The judgment is affirmed.

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____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ DAVID G. HAYES, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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