IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1998 FILED
December 10, 1998
DAVID CLIFF, ) C.C.A. NO. 02C01-9711-CC-00450
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appe llant, )
)
) DYER COUNTY
VS. )
) HON. JOE G. RILEY
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Co nviction Re lief)
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM K. RANDOLPH JOHN KNOX WALKUP
120 N. Mill St., Suite 303 Attorney General and Reporter
P. O. Box 611
Dyersburg, TN 38025-0611 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
PHILLIP BIVENS
District Attorney General
P. O. Draw er E
Dyersburg, TN 38025
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
This matter represents an appeal by Appellant, David Cliff from the Dyer
Coun ty Circuit Court’s dismissal of his pro se petition for post-conviction relief.
Appellant is currently serving a fourteen (14) year sentence for a conviction of
aggravated assault. On appeal, Appellant raises the following issue for review:
whether the trial court erred in denying Appellant’s pro se motion for a new trial
base d upo n the c laim o f ineffec tive ass istanc e of co unse l.
After review of the reco rd, we affirm the decis ion of the tria l court.
I. Procedural History
In Decem ber 1994, A ppellant was c onvicted of agg ravated assa ult by a
Dyer County jury, and the trial court sentence d him to fourtee n (14) years.
Appellant was represented by counsel at arraignment, at trial and at the
sentencing hearing. Although Appellant was represented by counsel at the
hearing on the motio n for a n ew trial, he also filed a pro se motio n for a n ew trial.
In April 1995, the Dyer County Circuit Court conducted a hearing on the
appe llant’s pro se motion for a new trial in which the app ellant alleged ineffective
assistance of counsel as one of the issues. The transc ript of A ppella nt’s motion
for new tria l indicat es tha t his decision to represent himself on the pro se motion
for new trial was en tered afte r an exten sive exam ination by th e trial court.
Subseq uently, the trial court found that he knowingly and volunta rily waive d his
right to c ouns el.
-2-
The trial court overruled the appella nt’s motion for a new trial after
considering each claim raised in his motion. Respecting the claims regarding
ineffective assistan ce of cou nsel, the trial c ourt foun d that Ap pellant failed to
prove that counsel’s performance was not in accordance with the range of
compe tence deman ded of attorneys who practice c riminal law. The trial court
further determined that Appellant failed to demonstrate any prejudice as a resu lt
of any alleged deficient performance.
On direct appeal, this Court affirmed Appellant’s conviction. However, the
issue of ineffective assistance of counsel was pretermitted so that the Appellant
could raise it later in a petition for p ost-con viction relief. The pretermission of the
ineffective assistance of counsel claim was based upon the absence of the
transcript of App ellant’s pro se motion for a new trial. State v. David C liff, supra
at *4. W e quote from the unpub lished op inion of this C ourt:
This Court cannot determine whether the trial court conducted
an evidentiary hearing or summarily dismissed the pro se motion.
The record is silent. There is an order contained in the record which
simp ly states that the motion for a new trial was found to be “without
merit.” The record does not contain a verbatim transcript or
statement of the evidence of the hearin g on th e mo tion for n ew trial.
As a general rule, this Court would conclusively presume that the
judgment of the trial court was correct. Howe ver, given the history
of this case, this Court will pretermit this issue so that the appellant
can raise it in a post-co nviction he aring.
State v. David C liff, C.C.A. No. 02-C-01-9509-CC-00262,1996 WL 551760 at *4,
Dyer Cou nty (Tenn. C rim. App. filed Sep tember 30 , 1996, at Jacks on).
-3-
Permission to appeal to the Supreme Court was denied on March 10,
1997. Subsequently, Appellant filed the present petition for post-conviction relief.
The post-con viction cou rt determ ined that Appellant raised the issue of ineffective
assistance of counsel at the motion for new trial and the petition failed to raise
any new grounds for post-conviction relief. The post-conviction court also ruled
that Appella nt’s petition d id not com ply with the re quirem ents of Tenn. Code Ann.
§ 40-30-2 17 whic h allows th e appe llant to file a m otion to reo pen the first post-
conviction petition in specific situations. Therefore, the post-conviction court
dismissed the petition without a hearing.
Appellant is again before this Co urt, cha llengin g the tria l court’s dismissal
of his pro se petition for post-conviction relief where he raised the issue of
ineffective assistan ce of cou nsel. State v. D avid Cliff, supra at *4. While the
transcript of the he aring o n App ellant’s motio n for a n ew trial w as inclu ded fo r this
Cou rt’s review in this appeal, the record remained incomplete because the
transcript of Appellant’s jury trial was absent from this Court’s technical record.
As a general rule, in the absence of a complete record of what transpired
in the trial cour t, this Cour t must p resume tha t the trial court’s rulings were
supported by sufficien t evidence . State v. Oody, 823 S.W.2d 554, 559 (Tenn.
Crim. App. 1991) (citing Verm ilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim.
App. 1979)). However, the courts may take judicial notice of the court re cords in
an earlier proc eeding of the sam e case . Delbridge v. State of Tennessee, 742
S.W.2d 266, 26 7 (Ten n. 1987 ). Accordingly, this C ourt has taken judicial notice
of the o riginal tria l record . Thus , an ad equa te exam ination of App ellant’s claim
of ineffective assistance of counsel can now be undertaken.
-4-
II. Post-Conviction Relief Standard of Review
As the chronology set out above shows, Appellant contends that the trial
court erred in denying his pro se petition for post-conviction relief based upon the
claim of ineffective assistance of trial counsel. In post-conviction proceedings,
the appellant bears the burden of proving the allegations raised in the petition by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210 (f). Additionally,
the trial court’s findings of fact are conclusive on appeal unless the evidence
preponderates against th e judgm ent. Butler v. Sta te, 789 S.W.2d 898, 899
(Tenn . 1990).
III. Ineffective Assistance of Counsel
A two-prong test for courts to em ploy in evaluating claim s of ineffective
assist ance of cou nsel w as pro noun ced b y the U nited S tates S uprem e Cou rt in
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984). Under the first prong, the defendant must show that
counsel’s performance was deficient and that counsel made errors so serious
that he was not functioning as “counsel” guaranteed the defendant by the
Sixth Am endm ent. Strickland, 104 S.C t. at 667.
Under the second prong, the defendant must show that the deficient
performance prejudiced the defense and counsel’s errors were so serious as
to deprive the defen dant of a fa ir and reliab le trial. Strickland, 104 S.C t. at 667.
The app ellant must esta blish both prong s of the test and a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on an
ineffective a ssistanc e claim. Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996).
-5-
The stand ard by which effective assista nce o f coun sel is jud ged in
Tennessee requires that the advice given or the services rendered by the
attorne y are w ithin the range of com peten ce de man ded o f attorne ys in
criminal cases. This “range of competency standard” was articulated by the
Supreme Court of Tennessee in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Additionally, the Tennessee Constitution requires a showing that
coun sel’s pe rform ance was d eficien t and th at defic iency w as pre judicia l in
terms of rendering a reasonable probability that the result of the trial was
unreliable or that the proceedings were fundamentally unfair. Tenn.
Cons.Art.1 § 9.
In the case at bar, Appellant raised the issue of ineffective assistance of
counsel at the hearing conducted at his pro se motion for a new trial. After the
trial judge carefully advised Appellant as to what he was required to show
under both the Strickland test and the Baxter standard, he presented ten
grounds which allegedly supported his contention. The trial court determined
that trial counsel’s conduct was within the range of competence demanded of
attorneys who pra ctice crim inal law an d conc luded tha t Appella nt failed to
demonstrate any prejudice as a result of any alleged deficient performance by
couns el. Strickland, 104 S.C t. at 667; Baxter v. Rose, 523 S.W.2d at 936.
Factual findings of the trial court are conclusive on appeal unless the
appellate court finds that the evid ence p repond erates a gainst the judgm ent.
Butler v. Sta te, 789 S.W.2d at 899. Accordingly, the trial court’s findings in the
instant case will be conclusive unless this Court finds that Appellant has met
-6-
the burden of showing that the evidence preponderates against the judgment
entered . Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim .App. 1990 ).
Regarding Appellant’s first alleged deficiency, he complains that trial
counsel did not adequately investigate the case against him. Appellant
comp lains that co unsel failed to condu ct an ade quate inv estigation of the facts
and circumstances surrounding the indictment pending against the appellant
as well as defenses available to him. More specifically, Appellant contends
that trial coun sel only inte rviewed h im twice. T he trial cou rt found n o proof to
support Appellant’s claim that there was an inadequate investigation and no
showing of prejudice as a result of any alleged failure to conduct any particular
type of inve stigation. A ccording ly, we find this is sue to be without m erit.
In reference to Appellant’s second complaint, he complains that counsel
failed to conduct an adequate voir dire examination and therefore, counsel
was not in a position to intelligently exercise the preemptory challenges
afforded Appellant by law. More specifically, Appellant complains that counsel
aliena ted the prosp ective ju rors ag ainst th e defe ndan t by rea son o f coun sel’s
behavior during the examination of the prospective jurors.
Howeve r, the trial record established that counsel’s voir dire
examination was appropriate. Our review of the record indicates that counsel
properly explained to the prospective jurors the burden of proof in a criminal
trial and the requirem ent that a fa ir jury hear the facts of the case. Counsel
also questioned jurors who demonstrated a potential bias in the case. Indeed,
this line of questioning resulted in jurors being excused from the jury. Also,
-7-
during the cou rse of the voir dire exam ination, counse l used six perem ptory
challenges. Therefore, Appellant has not overcome the trial court’s finding that
counsel conducted an adequate voir dire examination. Furthermore, we
cannot see how Appellant was prejudiced given counsel’s apparently thorough
examination of the prospective jurors and the lack of any evidence that the
jury, as seated, was biased.
Regarding Appellant’s third alleged deficiency, the appellant contends
that the cross-examination of the witnesses was without prior preparation and
consisted of continuous repetition. At trial, five witnesses were cross-
examined by counsel. When cross-examining one witness, the prosecution
made only one objection on the basis that the question had been asked and
answered. Furthermore, there were no objections made by the prosecution
about counsel’s performance during the cross-examination of three additional
witnesses. Additionally, it was the trial court and not the prosecution that
directed counsel to repeat a question during the course of counsel’s cross-
exam ination. Also, the record reflects that counsel declined to cross-examine
two of the trial witnesses.
The trial court concluded that there was no proof that counsel’s cross-
exam ination wa s continu ously rep etitive. This C ourt has noted tha t failure to
effectively cross-examine a witness does not necessarily indicate a deficient
perform ance u nless it affec ts the outc ome o f the case . Thom pson v. S tate,
958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). In the case sub judice,
Appellant has failed to show that counsel’s cross-examination affected the
outcome of his case. Moreover, even if counsel’s alleged continuous
-8-
repetition on cross-examination was deemed erroneous, Appellant has failed
to show that he w as prejud iced as a result of trial co unsel’s a ctions. Hartman
v. State, 896 S.W .2d 94,105 (T enn. 1995 ).
The a ppellant’s fourth arg umen t concern s coun sel’s failure to object to
questions asked by the prosecution relative to the fears of children after the
comm ission of the crime in question. Ho wever, a review o f the record
indicates that there w ere no c hildren invo lved who testified in the trial.
Furthermore, at the hearing conducted at Appellant’s pro se motion for new
trial, Appellant testified that there were no children who testified in his case.
Therefore, the trial court determined this claim to be irrelevant. We concur
with the trial co urt and find this issue to be withou t merit.
Regarding Appellant’s fifth contention, he complains that counsel
ineffectively prepared the defense witnesses for trial. Appellant further
conten ds that as a result of co unsel’s a ctions, the prosec ution wa s able to
elicit information from the witnesses which was in direct contradiction to the
testimony of the defendant and the position taken by his counsel. The trial
court de termine d that Ap pellant’s fifth co ntention w as factua lly incorrect.
Furthermore, our review of the record does not show that additional
preparation time with the witnesses could have prevented them from testifying
differently or p revent the state from effectively cro ss-exam ining the w itnesses .
Accord ingly, we find this issue to be withou t merit.
Appellant’s sixth claim concerns counsel’s failure to make the position of
the appellant clear to the jury and the trial court. However, after a thorough
-9-
review of the record, it is unclear to this Court what particular position the
defendant wanted raised. We quote from the transcript of Appellant’s pro se
motion for new trial, where the appellant testified to the following:
[Counsel] failed to make the position of the defendant clear
to the ju ry and the Co urt. An d the C ourt wa s so th oroug hly
confused a t the end of the de fendant’s case in chief, the Court
was at a loss to know what should be charged relative to the
position o r defens e offered on beh alf of the de fendan t.
[The prosecutor] prosecuting the case admitted being
rattled, a nd he , too, ob viously , did no t unde rstand the de fenda nt’s
position.
Motion for new trial transcript, page 29-30.
Plainly, counsel made the appellant’s position clear to the jury and the
Cou rt. Cou nsel’s positio n in his c losing argum ent wa s bas ed on Appe llant’s
lack of motive for com mitting the crim e, the s tate’s fa ilure to p rove h is
involve men t in the c rime, a nd the state’s failure to prove Appe llant’s g uilt
beyond a reaso nable d oubt.
The trial c ourt dete rmined that coun sel’s action s did not c onstitute
deficient performance. We concur with the trial court and believe that counsel
adequately presented the defense. Thus, we find this issue to be without
merit.
Regarding Appellant’s seventh alleged deficiency, he contends that
couns el failed to co nfer and give advice to Appe llant before calling him to
testify at trial. More specifically, Appellant complains that he had executed a
-10-
sworn s tateme nt before the trial com menc ed with re spect to h is decision not to
testify. However, our review of the record indicates that the appellant testified
at the s enten cing h earing and n ot at trial. Appellant testified at the sentencing
hearing that he and coun sel had discu ssed his pres entence rep ort and record
prior to tr ial. App ellant a lso tes tified tha t he an d cou nsel h ad rev iewed his
version of the statement that was given to the probation officer when she
compiled the presentence report. Thus, Appellant’s testimony indicates that
he conferred with counsel prior to testifying at the sentencing hearing.
Appellant fails to prove that counsel failed to confer with him prior to testifying
at the sentencing hearing. Appellant also fails to reveal what would have been
discovered through further advice by counsel prior to trial. Therefore, we
concur with the trial court’s determination that this alleged deficiency is without
merit.
Appellant’s eighth claim concerns counsel’s failure to subpoena
witnesses that Appellant wanted called as alibi witnesses. At the hearing
conducted at Appellant’s pro se motion for new trial, the trial court found no
showing of w hich witnesses counsel failed to su bpoena . The determ inative
issue however, is Appellant’s failure to produce witnesses at the hearing
conducted at his pro se motion for new trial. T his Cou rt canno t specula te
upon the us efulne ss of th ese w itness es with out the inform ation th ey cou ld
have pro vided. Thom pson v. S tate, 958 S.W.2d at 164 (citing Black, 794
S.W .2d at 757 ).
Furthermore, to succeed on this claim, Appellant must establish that he
was prejudiced by counsel’s failure to subpoena the witnesses. To establish
-11-
prejudice, Appellant must: 1) produce the witness at his post-conviction
hearin g; 2) sh ow tha t throug h reas onab le inves tigation , trial cou nsel co uld
have located the witness; and 3) elicit favorable and material testimony from
the witnes s. Dento n v. State, 945 S.W.2d 793, 802-803 (Tenn. Crim. App.
1996) (citing Black, 794 S.W .2d at 757). App ellant’s failure to do so rend ers
this issue m eritless.
Regarding Appellant’s ninth alleged deficiency, the Appellant complains
that counsel failed to ask for a mistrial after his failure to excuse a juror who
was employed as a deputy jailer. The prospective juror allegedly had
precon ceived ide as abo ut Appe llant’s guilt bec ause s he kne w the ap pellant.
However, a review of the record does not reveal a prospective juror who
indicated any kn owledge a bout the app ellant or the case d uring voir dire
examination. Clearly, even if a prospective juror had indicated knowledge
abou t the ap pellan t in the in stant c ase, th ese c omm ents w ould n ot nec essa rily
be grounds for a mistrial. This Court has held:
Comments from a prospective juror in response to questions from
defense counsel during voir dire that indicate his possession of
information inculpating the defendant is not grounds for a mistrial
absent evidence showing that the jury which heard the case was
prejudicia l or biased by the state ment o f the prosp ective juror.
State v. Brown, 795 S.W.2d 689 (Tenn. Crim. App. 1990) (citing State v.
Porte rfield, 746 S.W .2d 441 (Te nn. 1988)).
The trial court foun d no show ing that couns el’s failure to ask for a
mistrial rep resente d deficien t perform ance. W e find that A ppellant fa iled to
-12-
show that any of the prospective jurors indicated knowledge about him or the
case. W e further determ ine that Appe llant failed to demon strate that the jury
was prejudicial or biased by any comment made by a prospective juror during
voir dire exa mination . Thus, w e find this iss ue is witho ut merit.
Appe llant’s last com plaint con cerns co unsel’s o pening statem ent.
Appellant complains that counsel mentioned to the jury that Appellant had
been in dicted for o ther crim es and that he ha d a prior crim inal record .
Howeve r, the trial court determine d that if this had occu rred, it would have
been base d on tria l tactics. H owev er, a rev iew of th e trial rec ord ind icates this
complaint to be factually incorrect. The only mention of an indictment made
by counsel in his opening statement was his reference to Appellant’s plea of
not guilty after he was arrested, indicted, and arraigned on the present charge.
Counsel followed this comment by stating that the appellant had maintained
his inn ocen ce from the inc eption of the tria l. Furthermore, the record does not
reflect that either counsel or the prosecution mentioned Appellant’s prior
crimin al reco rd durin g ope ning s tatem ent. T herefo re, the r ecord amp ly
suppo rts a finding that this issu e is withou t merit.
A review of the record in this case does not convince this Court that
proof preponderates against the judgment entered by the trial court denying
Appellant’s ineffective a ssistance of co unsel claim. T he post-con viction court
determine d that some of the decisions tha t were attacked by Appellant w ere
tactical decisions generally not indicative of deficient performance. We concur
with the po st-convictio n court a nd find tha t it is not this Co urt’s function to
“secon d gues s” tactical an d strateg ic choice s mad e by cou nsel. Camp bell v.
-13-
State, 904 S.W.2d 594,596 (Tenn. 1995) (citing Hellard v. S tate, 629 S.W.2d
at 9).
From our examination of the original trial record and the transcript of the
hearing conducted at Appellant’s pro se motion for a new trial, we do not
believe that Appellant demonstrated that counsel’s representation was
deficient o r that he w as prejud iced as a result of an y alleged d eficiency.
Furthermore, the appellant did not establish that counsel’s performance
deprived him of a fair and reliable trial or that services rendered by this trial
coun sel we re not w ithin the range of com peten cy dem ande d of atto rneys in
criminal cases.
We conclude that Appellant received effective assistance of trial
coun sel. Ac cordin gly, the ju dgm ent of th e trial co urt den ying A ppella nt’s claim
of ineffective assistan ce of cou nsel is affirm ed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
-14-