IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL SESSION, 1998 August 18, 1998
Cecil W. Crowson
Appellate Court Clerk
LARRY JUNIOR KEATON, ) C.C.A. NO. 01C01-9704-CR-00146
)
Appe llant, )
) DEKALB COUNTY
V. )
)
) HON. LEON BURNS, JR., JUDGE
STATE OF TENNESSEE )
)
Appellee. ) (POST -CON VICTIO N)
FOR THE APPELLANT: FOR THE APPELLEE:
HENRY D. FINCHER JOHN KNOX WALKUP
15 South Jefferson Avenue Attorney General & Reporter
Cookeville, TN 38501
KAREN M. YACUZZO
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM EDWARD GIBSON
District Attorn ey Ge neral
ANTHO NY J. CR AIGHEAD
Assistant District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, L arry Junio r Keaton , appea ls the orde r of the De kalb Co unty
Criminal Court dismissing his petition for post-conviction relief. Petitioner argues the
followin g four (4 ) issue s in this a ppea l:
1. Whether Petitioner’s right to due process was violated
by both the State not giving notice of its intent to dismiss
a count in the indictment for the s ale of a certain drug and
by the S tate’s re ferenc e to tha t certain drug d uring tria l;
2. Wh ether the State’s c losing argum ent at trial was prope r;
3. W hethe r the ca reer of fende r statute is cons titutiona l;
4. Wh ether the trial court erred in failing to instruct the jury as to a
lesser included offense; and
5. W hether P etitioner’s trial co unsel w as ineffec tive.
Petitioner was convicted at trial of one count of selling co deine , a Sch edule
III controlled subs tance. The trial court sente nced him to twelve (12) years as a
career offender. On direct appeal, Petitioner alleged that the trial court erred in
failing to charge the jury on simple possession, casual exchange, and missing
witnesses. State v. Larry Keaton, C.C.A . No. 0 1C0 1-930 8-CC -0026 5, De kalb
Coun ty (Tenn. Crim. App., Nashville, June 30, 1994). This Court rejected those
claims, and Petitioner did not appeal to the supreme court. Id. Petitioner filed a pro
se post-con viction petition raising nu merou s issues , and subsequently his appointed
counsel filed an ame nded post-c onvictio n petitio n. Following a hearing, the trial
court de nied his p etition for po st-convictio n relief.
In its Rule 20 affirma nce of Petitioner’s direc t appeal, this Cou rt briefly relayed
the facts of the instant case as follo ws: “A state tro oper p urcha sed tw elve (1 2) pills
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containing codeine and sixty-three (63) counterfeit pills which the defendant had
presented a s ‘somas’ for a total sale in th e amo unt of nine ty-eight do llars ($98). A
confidential informant was present during these transactions, but the State did not
call this witness to testify at trial.”
Petitioner testified at the post-conviction hearing that he and K athryn Bullard
saw Terry Skinn er whe n they w ent to b uy bee r. Acco rding to Petitioner, Skinner
asked if they had any drugs and Petitioner told him that Bullard had some. Skinner
said he did not have th e mo ney with him a nd as ked if th ey wou ld me et him in thirty
minutes at the same location. Thirty minutes later, Skinner returned. “The best
[Petitioner] can remember,” Bullard counted out the pills and handed them to him,
and then he handed them to Skinner. Skinner then gave Petitioner the money which
he then passed to Bullard.
Regarding his trial coun sel’s alleged ineffectiveness, Petitioner testified at the
hearing that he met w ith his a ttorney , Chris Cant rell, several times prior to trial. They
discussed the facts of the case and the elements of the charged crimes. They also
discussed calling both Skinner and Bullard as witnesses. When Petitioner asked
Can trell why he w as not g oing to put Bullard on the stand, Can trell said Bullard
would do more harm than good. Petitioner te stified th at he th ough t Bullard would
have testified that she received the proceeds from the sales. However, Petitioner
did admit that Bu llard could have testified that the entire transa ction w as Pe titioner’s
idea.
Kathryn Bullard testified at the hearing that she and Petitioner were charged
with selling Tyleno l III’s with code ine. Prior to P etitioner’s trial, B ullard pled guilty to
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simp le possession. Bullard claimed at the hearing that Skinner approached her and
Petitioner and wanted to know if they had any pills. Petitioner told Skinner that
Bullard might ha ve som e and S kinner as ked if he co uld meet th em ba ck in thirty
minutes. Accord ing to Bu llard, when the transa ction took place, she was the one
who took the money.
Howeve r, Bullard adm itted tha t she m ade th e following statement in her
application for pretrial diversion: “Larry Keaton was driving my car and I was in the
car with him. I do not know anything about the incident in question. I do not know
what was going on.” She later met with a probation officer regarding a presentence
report and provided the following statemen t: “I was with my boyfriend, Larry Keaton,
in my car. I didn’t know what he was doing. I was at the wrong place at the wrong
time. I was innocent of this incident. I have never been in any trouble before and
I’ve always tried to lead a dece nt life.”
Bullard testified that sh e me t with C antrell prior to trial, and that they discussed
Petition er’s case. She told Cantrell that she would take the blame if she testified.
Bullard admitted that she would have likely been impeached at trial had she testified.
Chris Cantrell, Petitioner’s trial counsel, testified that he met with Petitioner at
least 25 times prior to trial. Petitioner advised him that Bullard would take the blame
if permitted to testify. Cantrell asked Petitioner if Bullard would be testifying
truthfully, and Petitioner said that she would n ot. Cantr ell state d that h e did n ot call
her as a witne ss beca use he did not wis h to prese nt perju red tes timon y. Can trell did
attempt to use Bullard as a scap egoa t at trial, in essence b laming her for the entire
transaction.
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Can trell, Petition er, and the Sta te all atte mpte d to loc ate Sk inner, b ut he c ould
not be found because he had fled the county. Cantrell did, however, obtain a copy
of Skinner’s criminal record and questioned Trooper Wilbanks, the undercover police
officer, about it during cross-examination.
Can trell further testified that Petitioner was originally charged with two crimes,
but that the count regarding the sale of Somas was nolled on the day of trial. At that
point, he had already submitted his proposed jury instructions to the court. Cantr ell
agreed that the State periodically referred to the sale of Somas during the trial. He
testified that he did not object to these references because he did not want to draw
any unnec essary attention to them. He said he believed the references to Somas
“just wen t right over ev eryone’s head.”
I.
A. Nolled Charge
Petitio ner was originally charged with two counts, the first being the sale of
Codeine, a Schedule III controlled substance, and the second being the sale of
Somas, a Schedule IV controlled substance. Tenn. Code Ann. §§ 39-17-417 (a)(3);
39-17-423 (a)(1). At some point prior to trial, the State notified Petitioner’s trial
counsel that it had nolled the second count as to the sale of Somas.
Petitioner argues that the S tate’s notice was un timely. Howeve r, Petition er did
not raise this issue in his direct appeal, and his failure to do so constitutes a waiver
of this issue. Tenn. Code Ann. § 40-30-206(g). Even if we deem this issue as not
waived, it is still without me rit. Petitioner fa iled to prese nt any pro of at the po st-
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conviction hearing of how h is trial was pre judiced b y this allege d error. P etitioner
focused on the ineffec tivenes s claim at the h earing , so the court’s ruling o nly
addressed the ineffectiveness claim and a few others. The trial court did not even
address this issue. In fact, when the co urt asked Pe titioner’s counsel if there were
any other issues that req uired a ruling, c ouns el replie d in the negative. In sup port
of his argument, Petitioner refers to Rule 45(c) of the Tennessee Rules of Criminal
Procedure. That rule states that a person who files a motion requiring a hearing
must serve the motion on opposing counsel no later than five days before the time
specified for the hearin g. This rule is n ot app licable to this case . Petitioner fa ils to
cite any other auth ority for the proposition that the State is required to dismiss a
charge by a certa in date. T his issue is without m erit.
B. State’s References to Somas
During the trial, the S tate referred to the sale of Somas, even though that
count had actually been dismissed. Petitioner now complains that the refere nces to
Somas during trial and during closing argum ent were imp roper. Howe ver, again ,
Petitioner did not raise this issue on direct appeal, and therefore, it is deemed
waived. Ten n. Code A nn. § 40-30-2 06(g).
II.
Petitioner argues that the S tate impr operly co mm ented o n his failure to testify
when during closing argument the State referred to the officer’s “unrebutted
testimon y.” The State asserts in its brief tha t this issu e has been previo usly
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determined and is therefore not cogn izable in this petition. See Tenn . Code Ann. §
40-30-206 (h). Specifically, it appears that Petitioner raised this issue in his motion
for a new trial. W e can resolve this issu e aga inst Pe titioner as this Court has
cons istently held that such arguments as the one made by the State in the instant
case are not im proper. See, e.g., Tune v. State, C.C.A. No. 01C01-9412-CC-00423,
Mars hall County (Tenn. Crim. App., Nashville, Oct. 31, 1995), perm. to appeal
denied (Tenn. 199 6).
III.
Petitioner asse rts that th e care er offen der sta tute is u ncon stitution al.
Petitioner did not raise th is issue at tria l, on direct ap peal, or ev en at the p ost -
conviction hearing . It has ther efore be en waive d. Tenn. Code Ann. § 40-30-206(g)
and -210(f).
IV.
Petitioner next asserts that the trial court erred in failing to instruct the jury on
the charge of facilitation of a felony. We agree with the court’s finding at the post-
conviction hearing that this is not an issue for post-c onvictio n relief s ince it is not an
abridgment of any co nstitutiona l right. Tenn . Code Ann. § 4 0-30-20 3; see also
Overton v. State, 874 S.W.2d 6, 12 (Tenn. 1994). Furthermore, even if this issue
was proper, Petitioner has waived this issue by failing to raise it at trial or on direct
appeal. Te nn. Code Ann. § 40-3 0-206(g) an d -210(f).
V.
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Petitioner argues that his trial counsel was ineffective in five instances: (1) for
failing to discover “the supposed informant used in this case;” (2) for failing to locate
Kathryn Bullard in time for trial; (3) for failing to demand an instruction on the lesser-
included offense o f facilitation o f a felon y; (4) for fa iling to o bject to the Sta te’s
references to “unrebutted testimony” during its closing arg umen t and for failing to
argue for jury nullification; and (5) for failing to object to testimony regarding Somas.
In determining whether counsel provided effective assistance at trial, the court
must decide whether counsel’s performance was within the range of competence
demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). T o succe ed on a claim tha t his cou nsel was ine ffective at trial, a
petitioner bears the burden of showing that his counsel made errors so serious that
he was not functioning as counsel as guaranteed under the Sixth Amendment and
that the deficient representation prejudiced the petitioner resulting in a failu re to
produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.
2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S. 1267 (198 4); Coop er v. State , 849
S.W.2d 744, 747 (T enn. 1993 ); Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0).
To satisfy the second prong the petitioner must show a reason able pro bability that,
but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le
doubt regarding petitioner’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable
probab ility must be “sufficient to underm ine confidence in the outcom e.” Harris v.
State, 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted) .
When review ing trial c ouns el’s actio ns, this Cour t shou ld not use the be nefit
of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at
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the time they were made in light of all facts and circumstances. Strickland, 466 U.S.
at 690; see Cooper, 849 S.W.2d at 746.
In determining whether this Pe titioner h as sa tisfied th ese re quirem ents, th is
Court must g ive the findin gs of the tria l court the we ight of a jury verdict, and the
judgment of the trial court will not be reversed unless the evidence contained in the
record prepon derates against th e findings of fact ma de by the trial court. State v.
Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).
W e have reviewed Petitioner’s various claims and we find that Petitioner has
failed to present any evidence that shows that his attorney represented him in any
other mann er than c ompe tently. As to his first complaint, Petitioner’s counsel
testified at the post-conviction hearing that he, Petitioner, and the State searched for
the informant, who had fled the county, and that nobody could locate him.
Petitioner’s couns el none theless u sed the informa nt’s crimin al record at trial to
impeach the officer who testified on behalf of the State. Petitioner did no t call this
informant as a witne ss at his post-conviction h earing , so the re is no record of his
expected testimony. Therefore, Petitioner cannot prove that he was prejudiced by
the info rman t’s abs ence at trial.
As to his next claim regarding Kathryn Bullard, Petitioner’s trial counsel
testified that he did not call her as a witness bec ause she intended to pe rjure herself.
Bullard wanted to testify at Petitioner’s trial and take full responsibility for the drug
sale. However, when Petitioner’s counsel asked Petitioner if Bullard’s testimony
would be truthful, he responded negatively. In fact, in the presentence report and
in her request for pretrial diversion, Bullard denies any involvement in the sale.
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Petition er’s counsel was certainly not ineffective for failing to call a witness who
intende d to perjure herself.
In Petitioner’s claim that his counsel was ineffective for failing to demand an
instruction on a lesser-included offense, the Tennessee Supreme Court has held,
as men tioned previo usly in th is opin ion, that such a com plaint is not co gniza ble in
a post-con viction petition . See Overton, 874 S.W .2d 6. Moreove r, the court
reasoned that “to allow every error committed by the trial court to be recast in a post
conviction petition as an ineffec tive assista nce of co unsel alle gation w ould be to
subvert the limited p urposes o f the post conviction p rocedure.” Id. at 12.
Petitioner also claim s that cou nsel wa s ineffective for failing to object to the
State ’s referenc es to “un rebutted testimon y” during its c losing arg umen t and that
counsel was ineffective for failing to argue for jury nullification. Petitioner did not
present any evidence regarding either of these issues at the post-conviction hearing
and has, therefore, failed to sh ow that he wa s prejudiced in a ny way by these
actions.
Lastly, Petitioner claims that his counsel was ineffective for failing to obje ct to
testimony regarding Somas. Petitioner’s counsel testified at the post- conviction
hearing that he made a tactical decision not to object to the references because he
did not want to draw attention to them. Even if this was a poor tactical decision,
Petitioner is still not entitled to relief because he has failed to show how he was
prejudiced. The c ourt sta ted at th e pos t convic tion he aring th at “he [P etitione r’s
coun sel] did not object believing that it was part of the transaction and that it did not
have any impact on the jury and it was part of the strategy, an d I see no fault in that.
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It was a pretty clear cut kind of a sale. There wasn’t any q uestio n that a sale
transpired.”
The trial court furthe r stated in its ruling that “there’s [no] showing here that
there’s any deficiency to begin with and any judgment calls that counse l may have
made in this Court’s opinion did not prejudice the defen dant’s defense in the case
and I believe he received a fair trial.” We agree with the trial court’s findings. The
evidence contained in the limited record does not preponderate against the trial
court’s finding that Petitioner received the effective assistance of counsel. This issue
is without m erit.
Based on all the fore going , we affirm the trial c ourt’s dism issal of P etitione r’s
petition for p ost-con viction relief.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
GARY R. WA DE, Presiding Judge
___________________________________
L. T. LAFFERTY, Special Judge
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