IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
ALLEN GARY LORD )
aka GARY ALLEN LORD, )
) C.C.A. No. 03C01-9610-CR-00384
Appellant, )
) Hamilton County
V. )
) Hon. Douglas A. Meyer, Judge
STATE OF TENNESSEE, )
)
Appellee. ) (Post-Conviction)
)
)
FOR THE APPELLANT: FOR THE APPELLEE:
Neal L. Thompson John Knox Walkup
615 Lindsay Street, Suite 150 Attorney General & Reporter
Chattanooga, TN 37403
Michael J. Fahey, II
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
William H. Cox, III
District Attorney General
Yolanda Mitchell
Assistant District Attorney General
Courts Building, Suite 300
Chattanooga, TN 37402
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Allen Gary Lord, alias Gary Allen Lord, appeals the denial
of his request for post-conviction relief. The appellant was convicted in March
1993 of second degree murder and abuse of a corpse. He was sentenced to
consecutive sentences of twenty-two years for murder and six years, as a career
offender, for abuse of a corpse. On direct appeal this Court affirmed his
convictions. In 1996, the post-conviction court denied the request for relief.
The appellant presents four issues for our review: (1) whether his attorney
was ineffective during the guilt phase of his trial; (2) whether his attorney was
ineffective during his sentencing hearing; (3) whether the appellant was
improperly classified as a career offender because the sentencing statute is
unconstitutionally vague; and (4) whether the reasonable doubt jury instruction is
unconstitutional. We affirm.
In his first issue, the appellant asserts that his attorney was ineffective at
the guilt phase of his trial. His argument is threefold: that his attorney failed to
research the law regarding the abuse of a corpse charge, failed to show the
violent past of the victim, and failed to call as a witness the police officer the
victim had kidnapped.
The state argues that the appellant’s attorney was not ineffective at the
guilt phase of the trial. First, the state asserts that the appellant’s attorney
researched the law and discussed with the coroner his findings. Therefore, the
state maintains that the appellant’s attorney investigated the issue “to the
furthest possible extent.” Second, the state contends that the appellant’s
attorney elicited “most of the victim’s past behavior and crimes through the
victim’s girlfriend,” and also brought out that the victim had spent a substantial
amount of time in prison. Finally, the state asserts that the appellant’s attorney
chose not to call the police officer as a witness because he did not believe that
-2-
the officer would be a favorable witness for the appellant and because he
believed that the victim’s girlfriend’s version of the facts were more favorable to
the appellant’s case than the officer’s version would have been.
To be granted relief on the ground of ineffective assistance of counsel, an
appellant must establish that the advice given or the services rendered were not
within the competence demanded of attorneys in criminal cases and that, but for
counsel’s deficient performance, the result of his or her trial would have been
different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the
appropriate test is whether counsel’s performance was within the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975).
In post-conviction proceedings, petitioners bear the burden of proving
their allegations by a preponderance of the evidence. Black v. State, 794
S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,
195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in
post-conviction hearings are conclusive on appeal unless the evidence
preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
Based upon the record before us, the appellant’s trial attorney attempted
to accomplish what the appellant now complains about in his brief. It appears
that the appellant’s trial attorney prepared the best defense strategy for the
appellant that he could, given the facts of the case. This Court finds that the
appellant has failed to carry the burden of establishing that his attorney was
ineffective. The evidence does not preponderate against the post-conviction
court’s findings. This issue is without merit.
-3-
In his second issue, the appellant argues that his trial attorney was
ineffective at the sentencing phase. He asserts that his attorney failed to
introduce medical records at sentencing which would have mitigated his
sentence. Before his arrest in the victim’s death, the appellant on September 26,
1992 filed a complaint against police officers for shooting him. At the time, the
appellant was at Erlanger Hospital for treatment of a cut on one of his fingers.
He was subsequently arrested because he was intoxicated and because he was
hostile toward police officers. On September 27, 1992, the appellant was taken
to Moccasin Bend Mental Health Institute because of his arrest and his behavior.
Five days later he left Moccasin Bend and that same day gave a statement to the
police about the murder.
The state argues that the appellant’s trial attorney was not ineffective at
the sentencing phase. In its brief, the state asserts that appellant’s trial attorney
did review the medical records from Moccasin Bend; and although he did not
interview the appellant’s two doctors, both doctors at Moccasin Bend indicated in
their reports “that Lord presented no psychosis.” The appellant’s trial attorney
maintained that the medical records did not show a diminished capacity or
support a mitigated sentence. However, the appellant contends that his trial
attorney never reviewed these medical records “until the day of the Post-
Conviction trial.” Furthermore, the state argues that on direct appeal, this Court
noted that consecutive sentencing was based on the trial court’s finding that the
appellant had an extensive criminal history and was a dangerous offender.
Thus, the state maintains that had these medical records been introduced,
consecutive sentencing would still have been warranted.
The appellant’s trial attorney testified at the post-conviction hearing that
the appellant’s defense was self-defense, not insanity. Furthermore, this Court
noted on direct appeal that consecutive sentencing was based on the appellant’s
criminal record and status as a dangerous offender. The appellant has failed to
-4-
carry the burden of proving that his trial attorney was deficient. This issue is
without merit.
In his third issue, the appellant argues that Tenn. Code Ann. §§ 40-35-
108 and 117 (1990) are unconstitutional. He contends that Tenn. Code Ann.
§ 40-35-108(b)(2) (1990) is “so vague that men of common intelligence must
necessarily guess as to its meaning and differ as to its application.” Also, he
challenges Tenn. Code Ann. § 40-35-117(c) (1990) as ambiguous “by inferring
that all crimes committed prior to July 1, 1982, shall not be included in
determining the classification of a defendant under the 1989 Sentencing Act.”
Therefore, the appellant’s argument is that his pre-1982 convictions should not
have been used to classify him as a career offender.
The state, however, argues that Tenn. Code Ann. § 40-35-108(b)(2) is
clear that “[a]ll prior felony convictions including those occurring prior to
November 1, 1989, are included” in calculating whether a defendant is a career
offender. Furthermore, the state in its brief notes that this Court has interpreted
the statute based on its clear meaning: “There appears to be no doubt that the
legislature intended to permit consideration of all prior felony convictions
occurring during the defendant’s life.” State v. Wright, 836 S.W.2d 130, 136
(Tenn. Crim. App. 1992). Therefore, the state maintains that the language in the
statute is clear and that the appellant was properly classified as a career
offender.
We agree with the state that the statutes challenged by the appellant
clearly indicate that all felony convictions during a defendant’s lifetime may be
considered when deciding whether to classifiy him as a career offender. This
issue is without merit.
-5-
In his final issue, the appellant argues that the term “moral certainty” in the
trial court’s reasonable doubt jury instruction violates the due process provision
of the United States Constitution. Although the state notes that the record does
not contain the trial court’s reasonable doubt jury instruction, it asserts that the
courts of this state have determined that the use of this term does not render the
reasonable doubt jury instruction unconstitutional.
The record before us does not contain the jury instructions given at the
trial. It is the appellant’s responsibility to prepare a record that includes all
material necessary for disposition of his appeal. Tenn. R. App. P. 24(e); see
State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987). Failing to do so
results in a waiver of this issue. Tenn. R. Ct. Crim. App., Rule 10(b).
Therefore, the judgment of the court denying post-conviction relief is
affirmed.
-6-
________________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
JOSEPH B. JONES, Presiding Judge
______________________________
J. CURWOOD WITT, JR., Judge
-7-