Larry Keaton v. State

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 -2- 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 -3- 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. -4- 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- -5- 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 -6- 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. -7- 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 -8- 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. -9- 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. -10- 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 -11-