Bacon v. State

1 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

2 AT KNOXVILLE FILED
3 MAY 1997 SESSION
APRIL 23, 1998
4
Cecil Crowson, Jr.
Appellate C ourt Clerk
5 WILLIE BACON, JR., )
6 )
7 Appellant, ) No. 03C01-9605-CR-00203
8 )
9 ) Hamilton County
1 0 v. )
1 1 ) Honorable Douglas A. Meyer, Judge
1 2 )
1 3 STATE OF TENNESSEE, ) (Post-Conviction)
1 4 )
1 5 Appellee. )
1 6
1 7
1 8 For the Appellant: For the Appellee:
1 9
2 0 Ardena J. Garth Charles W. Burson
2 1 District Public Defender Attorney General of Tennessee
2 2 and and
2 3 Donna Robinson Miller Michael J. Fahey, II
2 4 Assistant Public Defender Assistant Attorney General of Tennessee
2 5 Suite 300, 701 Cherry Street 450 James Robertson Parkway
2 6 Chattanooga, TN 37402 Nashville, TN 37243-0493
2 7
2 8 William H. Cox, III
2 9 District Attorney General
3 0 and
3 1 C. Leland Davis
3 2 Assistant District Attorney General
3 3 City-County Building
3 4 Chattanooga, TN 37402
3 5
3 6
3 7
3 8
3 9
4 0
4 1 OPINION FILED:____________________
4 2
4 3
4 4 AFFIRMED
4 5
4 6 Joseph M. Tipton
4 7 Judge
4 8
4 9
5 0
5 1
5 2
5 3
5 4
5 5 OPINION

5 6

5 7 The petitioner, Willie Bacon, Jr., appeals as of right from the Hamilton

5 8 County Criminal Court’s denial of post-conviction relief after an evidentiary hearing. He

5 9 contends that he is entitled to post-conviction relief because the reasonable doubt and

6 0 malice instructions given at his trial violated his due process and equal protection rights

6 1 and because he received the ineffective assistance of counsel. We disagree and affirm

6 2 the judgment of the trial court.

6 3

6 4 In 1989, the petitioner was convicted of first degree murder and received

6 5 a sentence of life imprisonment. This court affirmed his conviction. State v. Willie

6 6 Bacon, Jr., No. 1164, Hamilton County (Tenn. Crim. App. Aug. 4, 1992), app. denied

6 7 (Tenn. Dec. 14, 1992). The petitioner filed the present petition for post-conviction relief

6 8 on May 13, 1994.

6 9

7 0 A transcript of the petitioner’s trial is the only evidence that was introduced

7 1 at the evidentiary hearing on his post-conviction petition. At the hearing, the petitioner’s

7 2 attorney argued that the malice and reasonable doubt jury instructions given at the

7 3 petitioner’s trial violated his constitutional rights. She also argued that the petitioner

7 4 received the ineffective assistance of counsel because his trial counsel failed to object

7 5 to the state’s closing argument, failed to object to the reasonable doubt and malice jury

7 6 instructions, and failed to challenge the sufficiency of the convicting evidence on

7 7 appeal.

7 8

7 9 In its order denying the petition, the trial court stated that the reasonable

8 0 doubt and malice jury instructions did not violate the petitioner’s constitutional rights and

8 1 that the petitioner did not receive the ineffective assistance of counsel. Specifically, the

8 2 court found that the petitioner’s counsel made a tactical decision not to object during

2
 8 3 the state’s closing argument. The court also stated that although the petitioner’s

8 4 counsel did not challenge the sufficiency of the convicting evidence, this court

8 5 examined the convicting evidence and concluded that the evidence sustained the

8 6 conviction.

8 7

8 8 I. REASONABLE DOUBT JURY INSTRUCTION

8 9 The petitioner contends that he is entitled to post-conviction relief

9 0 because the use of the term “moral certainty” in the reasonable doubt jury instruction

9 1 given at his trial allowed the jury to convict him based on a lower standard of proof than

9 2 is constitutionally required. We disagree.

9 3

9 4 The following instruction was given at the petitioner’s trial:

9 5 Reasonable doubt is not that doubt that may arise from
9 6 possibility, but is that doubt engendered by an investigation of
9 7 all the proof in the case and an inability, after such
9 8 investigation, to let the mind rest easily upon certainty of guilt.
9 9 Absolute certainty of guilt is not demanded by the law to
1 0 0 convict of a criminal charge, but moral certainty is required as
1 0 1 to every proposition of proof requisite to constitute the offense.
1 0 2
1 0 3 This is a correct statement of the burden of proof for criminal trials in Tennessee. See

1 0 4 Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266

1 0 5 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App.

1 0 6 1994). Thus, the instruction did not violate the petitioner’s constitutional rights.

1 0 7

1 0 8 II. MALICE JURY INSTRUCTION

1 0 9 Next, the petitioner contends that the trial court's jury instruction regarding

1 1 0 malice violated his due process rights. See Sandstrom v. Montana, 442 U.S. 510, 99

1 1 1 S. Ct. 2450 (1979); State v. Bolin, 678 S.W.2d 40, 45 (Tenn. 1984). The trial court

1 1 2 gave the following instruction at the petitioner’s trial:

1 1 3 Malice is an intent to do injury to another, a design
1 1 4 formed in the mind of doing mischief to another.
1 1 5 Malice may be express or implied. Express malice is
1 1 6 actual malice against the party slain and exists where a person

3
1 1 7 actually contemplates the injury or wrong he inflicts. Implied
1 1 8 malice is malice not against the party slain, but malice in
1 1 9 general, or that condition of the mind which indicates a wicked,
1 2 0 depraved, and malignant spirit, and a heart regardless of social
1 2 1 duty and fatally bent on mischief. Implied malice may be found
1 2 2 to exist where the wrongdoer did not intend to slay the person
1 2 3 killed but death resulted from a consciously unlawful act done
1 2 4 intentionally and with knowledge on the wrongdoer’s part that
1 2 5 the act was directly perilous to human life. In this event, there
1 2 6 is implied such a high degree of conscious and willful
1 2 7 recklessness as to amount to that malignity of heart
1 2 8 constituting malice.
1 2 9
1 3 0 As with other issues, the question of malice may be
1 3 1 decided from direct or circumstantial evidence, or both. It is for
1 3 2 the jury to decide under all the facts and circumstances of the
1 3 3 case whether malice was present in the slaying.
1 3 4
1 3 5 If a deadly weapon is handled in a manner so as to
1 3 6 make the killing a natural or probable result of such conduct,
1 3 7 the jury may infer malice sufficient to support a conviction of
1 3 8 murder in the first degree. But, again, this inference may be
1 3 9 rebutted by either direct or circumstantial evidence or by both
1 4 0 regardless of whether the same be offered by the defendant or
1 4 1 exists in the evidence of the state. . . .
1 4 2
1 4 3 Malice cannot be inferred from deadly intent only,
1 4 4 because the deadly intent may be justifiable under the law, as
1 4 5 where one willfully kills another to save his own life or to save
1 4 6 himself from great bodily harm and the danger is imminent and
1 4 7 immediate, or if it were sudden and upon reasonable
1 4 8 provocation the killing might or might not be manslaughter, but
1 4 9 it would not be murder.
1 5 0
1 5 1 You are reminded that the state always has the burden
1 5 2 of proving every element of the crime charged beyond a
1 5 3 reasonable doubt. A permissible inference may or may not be
1 5 4 drawn from an elemental fact from proof by the state of a basic
1 5 5 fact. However, all inferences permitted to be drawn may be
1 5 6 rebutted. Such permissive inference does not place any
1 5 7 burden of proof of any kind upon the defendant.
1 5 8
1 5 9

1 6 0 In Sandstrom, the Supreme Court held that an instruction which effectively

1 6 1 tells the jury that they are to presume the existence of malice, when such is an element

1 6 2 of the offense, impermissibly shifts the burden of proof to the defendant. Sandstrom,

1 6 3 442 U.S. at 524, 99 S. Ct. at 2459. However, the trial court in this case did not instruct

1 6 4 the jury to presume the existence of malice. Taken as a whole, the instruction created

1 6 5 a permissive inference. See Bolin, 678 S.W.2d at 42-45; see also State v. James

4
1 6 6 Blanton, No. 01C01-9307-CC-00218, Cheatham County (Tenn. Crim. App. Apr. 30,

1 6 7 1996), app. pending (holding that a similar instruction did not violate Sandstrom). Thus,

1 6 8 the instruction did not violate the petitioner’s constitutional rights.

1 6 9

1 7 0 III. INEFFECTIVE ASSISTANCE OF COUNSEL

1 7 1 Finally, the petitioner contends that he is entitled to post-conviction relief

1 7 2 because he received the ineffective assistance of counsel. The petitioner contends that

1 7 3 his counsel was ineffective for failing to object to the state’s closing argument, failing to

1 7 4 object to the malice and reasonable doubt instructions that were given at his trial, and

1 7 5 failing to challenge the sufficiency of the convicting evidence during his direct appeal.

1 7 6 The state counters that the petitioner has failed to demonstrate that his counsel was

1 7 7 deficient and that he suffered any prejudice from the alleged deficiencies.

1 7 8

1 7 9 The burden was on the petitioner in the trial court to prove his allegations

1 8 0 that would entitle him to relief by a preponderance of the evidence.1 Brooks v. State,

1 8 1 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial

1 8 2 court’s findings unless we conclude that the evidence preponderates against those

1 8 3 findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,

1 8 4 the petitioner has the burden of illustrating how the evidence preponderates against the

1 8 5 judgment entered. Id.

1 8 6

1 8 7 Under the Sixth Amendment, when a claim of ineffective assistance of

1 8 8 counsel is made, the burden is upon the petitioner to show (1) that counsel's

1 8 9 performance was deficient and (2) that the deficiency was prejudicial in terms of

1 9 0 rendering a reasonable probability that the result of the trial was unreliable or the

1 9 1 proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

1 9 2 Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,

1
For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f
proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).

5
1 9 3 842-44 (1993). Our supreme court has also applied this standard to the right to counsel

1 9 4 under Article I, Section 9 of the Tennessee Constitution, State v. Melson, 772 S.W.2d

1 9 5 417, 419 n.2 (Tenn. 1989), and to the right to appellate counsel under the Fourteenth

1 9 6 Amendment. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); see Evitts v.

1 9 7 Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985).

1 9 8

1 9 9 The petitioner contends that his attorney was deficient for failing to object

2 0 0 to the following remarks the prosecuting attorney made during the state’s closing

2 0 1 argument:

2 0 2 Mr. Bacon would have you believe that he simply
2 0 3 forgot, I guess. I guess it’s what you might term selective
2 0 4 amnesia. “Oh, yeah, I remember when he assaulted me.
2 0 5 Oh, yeah, I remember falling through the door. Oh, yeah, I
2 0 6 remember dropping the knife. Oh, yeah, I remember
2 0 7 running away. Oh, yeah, I remember getting in the car.”
2 0 8 Whoa, wait a minute. What about the 35 stab wounds? Oh,
2 0 9 is this the defense? Yes, I committed first degree murder,
2 1 0 but now I’ve forgotten about it. Okay, so you committed first
2 1 1 degree murder and you’ve forgotten about it.

2 1 2 The trial court found that the petitioner’s attorney acted within the range of competence

2 1 3 demanded of defense attorneys when he made a tactical decision not to object to these

2 1 4 remarks. We agree with the trial court’s assessment. The petitioner has failed to

2 1 5 demonstrate that these remarks were improper or that he was prejudiced by them.

2 1 6

2 1 7 We also disagree with the petitioner’s contentions that his counsel was

2 1 8 ineffective for failing to object to the reasonable doubt and malice jury instructions that

2 1 9 were given at his trial. As previously discussed, the instructions given at the petitioner’s

2 2 0 trial were proper.

2 2 1 Finally, the petitioner contends that his counsel was ineffective for failing

2 2 2 to challenge the sufficiency of the convicting evidence during his direct appeal. The

2 2 3 state counters that the petitioner’s counsel acted competently when he made a tactical

2 2 4 decision not to challenge the sufficiency of the evidence. The state also argues that the

6
2 2 5 petitioner has failed to show that he was prejudiced by his counsel’s failure to present

2 2 6 the sufficiency of the evidence on appeal.

2 2 7

2 2 8 We agree with the state that the petitioner has failed to show that he was

2 2 9 prejudiced by his counsel’s failure to challenge the sufficiency of the convicting

2 3 0 evidence. When viewed in the light most favorable to the state, see State v. Cabbage,

2 3 1 571 S.W.2d 832, 835 (Tenn. 1978), the proof at trial showed that the petitioner asked a

2 3 2 friend to drive him to the victim’s home. Before they left for the victim’s house, the

2 3 3 petitioner changed clothes. The petitioner “tucked” his clothes in a manner that

2 3 4 indicated that he had something concealed under his clothes. After arriving at the

2 3 5 victim’s house, the petitioner entered the house, where he stabbed the victim during a

2 3 6 struggle. The petitioner continued to stab the victim after the victim exited the house.

2 3 7 The petitioner stabbed the victim a total of thirty-five times, killing him. The proof at trial

2 3 8 indicated that the petitioner killed the victim as punishment or revenge related to an

2 3 9 unsuccessful drug transaction.

2 4 0

2 4 1 Based on the proof presented at trial, the jury was justified in concluding

2 4 2 that the petitioner was guilty of first degree murder. Thus, the petitioner has failed to

2 4 3 demonstrate that his attorney was deficient for failing to challenge the sufficiency of the

2 4 4 evidence on appeal and has failed to demonstrate that he suffered any prejudice from

2 4 5 his attorney’s decision not to raise the issue.

2 4 6

2 4 7

7
2 4 8 In consideration of the foregoing and the record as a whole, we affirm the

2 4 9 judgment of the trial court.

2 5 0
2 5 1 Joseph M. Tipton, Judge
2 5 2
2 5 3
2 5 4 CONCUR:
2 5 5
2 5 6
2 5 7
2 5 8
2 5 9 Joe B. Jones, Presiding Judge
2 6 0
2 6 1
2 6 2
2 6 3
2 6 4
2 6 5 Curwood Witt, Judge
2 6 6

8