State v. Joseph Rhinerson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1997 SESSION
FILED
June 17, 1997

JOSEPH MASON RHINERSON, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Petitioner, ) C.C.A. No. 02C01-9608-CC-00265
)
vs. ) Carroll County
)
STATE OF TENNESSEE, ) Honorable Julian P. Guinn, Judge
)
Appellee. ) (Post-Conviction)
)

FOR THE Petitioner: FOR THE APPELLEE:

C. DAVID JONES JOHN KNOX WALKUP
P.O. Box 707 Attorney General & Reporter
150 W. Main St.
Huntingdon, TN 38344-0707 ELLEN H. POLLACK
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493

ROBERT GUS RADFORD
District Attorney General

ELEANOR CAHILL
Asst. District Attorney General
P.O. Box 663
Camden, TN 38320

OPINION FILED: ____________________

AFFIRMED

CURWOOD WITT
JUDGE
 OPINION

The petitioner, Joseph Mason Rhinerson, appeals the Carroll County

Circuit's Court denial of post-conviction relief. He is serving a life sentence following

his conviction of murder in the first degree. In this appeal of his first post-conviction

proceeding, he alleges he was denied the effective assistance of counsel based

upon his trial counsel's failure to question prospective jurors about their views on

homosexuality, failure to move for a mistrial and make pertinent objections, failure

to make a timely motion for change of venue, and failure to investigate and present

evidence that the petitioner did not fire the bullet that killed the victim. He also

alleges his counsel's failure to question the venire about their views on

homosexuality denied him fundamental fairness and due process and that he was

likewise denied due process because a juror allegedly withheld information about

her knowledge of the case and her relationship with the victim's family. Finally, he

alleges he was denied a fair trial because of prosecutorial misconduct and the

conduct of the victim's supporters during trial. On review of these issues, which we

have reordered for purposes of discussion, we affirm the lower court's dismissal of

the petitioner's post-conviction petition.

The petitioner was convicted in the Carroll County Circuit Court of first

degree murder for the fatal shooting of his neighbor, Daniel Michael Walker. The

facts of that case are summarized in this court's opinion on direct appeal. See

State v. Joseph Mason Rhinerson, No. 02C01-9105-CC-00104 (Tenn. Crim. App.,

Jackson, Dec. 18, 1991), perm. app. denied (Tenn. 1992). It suffices for our

purposes to note that the murder was committed following an extended period of

ill will between the petitioner and members of the victim's household, the extent of

which was vigorously contested at trial. The petitioner was represented at trial by

Guy Wilkinson, the public defender of the Twenty-Fourth Judicial District, and

Buddy Roe, an assistant public defender. Mr. Roe represented the petitioner in his

direct appeal to this court. In that appeal, the petitioner's conviction was affirmed.
Permissive appeal was denied by the Tennessee Supreme Court. Thereafter, the

petitioner filed a pro se petition for post-conviction relief in which he complained of

various errors at trial, constitutional deprivations and ineffective assistance of

counsel. Following the appointment of counsel and the filing of an amended

petition, a hearing was held, and the Honorable Julian P. Guinn, Carroll County

Circuit Court, found the petitioner's claims wholly without merit and denied relief.

The petitioner is now before this court in his appeal of that determination.

In post-conviction proceedings, a petitioner has the burden of proving

his post-conviction allegations by a preponderance of the evidence. McBee v.

State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). A trial court's findings of fact

following a post-conviction hearing have the weight of a jury verdict. Breton v.

State, 477 S.W.2d 754, 756 (Tenn. Crim. App.1971). On appeal, those findings are

conclusive unless the evidence preponderates against the judgment. Butler v.

State, 789 S.W.2d 898, 900 (Tenn. 1990). With that standard of review in mind,

we turn to the issues presented.

I

The petitioner raises several allegations of ineffective assistance of

counsel. When a petition challenges the effective assistance of counsel, the

petitioner has the burden of establishing (1) deficient representation and (2)

prejudice resulting from that deficiency. Strickland v. Washington, 466 U.S. 668,

686, 104 S. Ct. 2052, 2066-67 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). Deficient representation occurs when counsel provides assistance that falls

below the range of competence demanded of criminal attorneys. Bankston v. State,

815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable

likelihood that, but for deficient representation, the outcome of the proceeding would

have been different. Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994). On post-

3
conviction review, there is a strong presumption of satisfactory representation. Barr

v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995).

Moreover, this court does not view matters of trial strategy or tactics as a basis for

ineffective assistance of counsel. See Taylor v. State, 814 S.W.2d 374, 378 (Tenn.

Crim. App. 1981).

A

In his first issue pertaining to the effectiveness of counsel, the

petitioner complains of his trial counsel's failure to examine the potential jurors

during voir dire on their views about homosexuality. At the time of the victim's

murder, the petitioner, an adult man, was living in the home of another adult man,

Johnny Scott. Apparently, members of the community, including members of the

victim's family and possibly the victim himself, believed the petitioner and Mr. Scott

were involved in a homosexual relationship. The petitioner alleged at trial he and

Mr. Scott were the subjects of ridicule and harassment because of this perception.

The basis of his demand for post-conviction relief is that this appearance of

homosexuality, 1 allegedly fostered at trial through references and innuendos to the

petitioner's "lifestyle," inflamed the jury and tainted its verdict.

In the case at bar, petitioner's trial counsel, Guy T. Wilkinson, testified

he decided after some deliberation not to question the venire about their views on

homosexuality. He reached this decision because the petitioner "very vehemently

denied" that he was homosexual, and he did not think it was a wise strategic

decision to call attention to the perception the petitioner was homosexual in light of

1
This court is not entirely clear as to whether the petitioner's position is
that the jury may have been biased against him because he is homosexual or
because he was merely perceived at the time of trial to be homosexual. His
position with respect to his sexual orientation has been inconsistent in the
various proceedings; however, it matters not for purposes of our analysis
whether he is homosexual or was merely perceived as homosexual.

4
that denial.

This court is constrained not to second-guess the tactical and strategic

choices made by trial counsel absent a showing those decisions were uninformed

due to inadequate preparation. Hellard v. State, 629 S.W.2d 5, 9 (Tenn. 1982).

Counsel's alleged errors will be judged at the time they were made in light of the

facts and circumstances then existing. Strickland, 466 U.S. at 690, 104 S. Ct. at

2066; see Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). Furthermore, trial

counsel will not be found ineffective merely because a different tactic may have

produced a different result. Williams v. State, 599 S.W.2d 276 (Tenn. Crim. App.

1980).

In the case at bar, the record reflects that the petitioner had the benefit

of well-prepared and experienced counsel. Because the petitioner's counsel

considered his approach and decided not to question the venire on the issue as a

matter of trial strategy, we will not, with the benefit of hindsight, second-guess that

decision. See Cox v. State, 880 S.W.2d 713, 718 (Tenn. Crim. App. 1994).

B

The petitioner's second allegation of ineffective assistance of counsel

arises from his counsel's pursuit of one line of questioning2 and failure to make

objections to several of the prosecutor's lines of questioning3 which the petitioner

2
The petitioner's counsel elicited testimony from the petitioner that a friend
of the victim's son called the petitioner a "faggot" and the petitioner returned the
comment just before the petitioner killed the victim.
3
This complaint is premised on several passages from the trial transcript
which the petitioner argues were "meant to improperly show the jury that the
petitioner was an outsider and invader in the neighborhood, . . . was not worthy
of belief, . . . deserved to be shot, and most importantly, that he and his
homosexual friend casually walked back arm-in-arm after he shot this family
man." In addition, the petitioner contends the prosecutor improperly referred to

5
contends were inflammatory and highly prejudicial. Also the petitioner cites his

counsel's failure to object or request a mistrial when the victim's fellow Shriners

allegedly wore Shriner paraphernalia in a show of solidarity with the victim's family, 4

when the victim's wife allegedly caused an outburst during the petitioner's testimony

in which she cried and yelled that the petitioner and his housemate were liars, and

when the victim's supporters were loud and disruptive during the trial. Finally, the

petitioner contends the cumulative effect of all of these alleged failings deprived him

of effective counsel.

The lower court disposed of the allegations that the victim's wife was

disruptive, the victim's family and friends verbally abused the petitioner within

earshot of the jury, and that the victim's fellow Shriners wore their fraternal hats in

the courtroom. It found the victim's wife left the courtroom after bursting into tears,

which "was not of particular significance and certainly not unexpected in a trial of

this nature." The lower court further found the remaining allegations regarding the

actions of the victim's wife and the victim's family and friends were "untrue." The

trial court did not address the petitioner's complaints about his counsel's questions

on direct exam and failure to object to the prosecution's examination of witnesses,

and this court notes the petitioner has raised these issues for the first time in this

appeal.

With respect to the issues addressed by the trial court, that the victim's

wife called the petitioner and his housemate liars, the victim's family and friends

the petitioner as Mr. Scott's "friend" during his cross-examination of Scott.
4
At the post-conviction hearing, the petitioner and his father testified the
Shriners wore their hats in the courtroom. Mr. Scott testified the Shriners wore
their hats in the hallway but had them in their laps while seated in the courtroom.
On appeal, the petitioner's complaint is that the Shriners "were seated in the
courtroom [and wore] their fraternal hats in the hallway during the trial in a mass
demonstration designed to prejudice and intimidate the jury."

6
verbally abused the petitioner within earshot of the jury, and the victim's fellow

Shriners wore their fraternal hats in the courtroom, we cannot say that the evidence

of record preponderates against the lower court's findings. The evidence does not

preponderate against the conclusion that these events did not occur. Because the

petitioner has failed to establish the truth of these allegations, no further analysis

is necessary.

With respect to the petitioner's complaint that the victim's wife caused

a disruption when she burst into tears during the petitioner's testimony, the

petitioner's trial counsel testified he felt like emotions would be a part of the case

and tried to cover this with the jury "in the very beginning." In his experience, "a lot

of times when people break down crying and things happen in a case I just think it's

better to -- you know, it happened, and let it go and get gone. . . . I would have done

something if it was so outrageous that I felt like it was bad." Because the public

defender obviously made the decision not to object based on his experience and

conscious evaluation of the situation at hand, we will not second-guess his decision.

See Cox, 880 S.W.2d at 718. Moreover, the evidence supports the trial court's

conclusion that this brief outburst was not significant in the context of the trial, and

we fail to see any prejudice which has befallen the petitioner as a result of the

victim's wife's brief crying spell in front of the jury. Thus, we agree with the trial

court that the petitioner has failed to demonstrate his trial counsel's ineffectiveness

in this regard.

Likewise, we find the petitioner is not entitled to relief on the issues

presented for the first time on appeal. See Butler v. State, 789 S.W.2d 898, 902

(Tenn. 1990); Ellison v. State, 549 S.W.2d 691, 694 (Tenn. Crim. App. 1976)

Moreover, we note that the petitioner's counsel did lodge his objections to at least

some of the passages quoted from the trial transcript, and in any event, none of

7
these newly raised issues deprived the petitioner of his constitutional right to the

effective assistance of counsel.

Finally, considering cumulatively all of counsel's alleged shortcomings

in questioning, failing to object and failing to move for a mistrial, we see no prejudice

on this record. The petitioner's trial counsel was not ineffective in this regard.

C

The petitioner's next grievance with trial counsel is that he failed to

make a timely motion for change of venue based upon pretrial publicity. The record

reflects that no written motion for change of venue was filed, and Attorney Wilkinson

first made such motion orally at the conclusion of jury selection. The motion was

denied based upon (1) untimeliness, (2) the lack of significant pretrial publicity, (3)

the lack of undue jury knowledge about the cause as demonstrated during voir dire,

(4) the fact that no potential jurors were challenged by the petitioner for cause, and

(5) the selected jurors could be fair. Joseph Mason Rhinerson, slip op. at 9. This

issue was raised in the direct appeal, and this court held that the trial court did not

abuse its discretion in failing to grant the motion. Joseph Mason Rhinerson, slip op.

at 9.

The petitioner and his father testified at the post-conviction hearing

that they demanded the public defender make a motion for change of venue at the

early stages of the proceedings. Mr. Wilkinson testified he did not believe a change

of venue was needed because the publicity surrounding the case was not extensive

throughout the county and he believed he could get jurors from parts of the county

other than the community where the offense occurred who would not be biased by

pretrial publicity or gossip. In the transcript of voir dire, the jurors all acknowledged

they could be fair and impartial and set aside any pre-trial information they had read

8
or heard about the case.5 The post-conviction court denied relief, finding that the

issue was previously determined and that the petitioner failed to develop significant

proof that the jury panel was prejudiced against him or that any familiarity with the

victim's family interferred with his right to a fair trial.

As this court has previously recognized, a strategic decision by

counsel not to challenge venue is a "valid tactical choice." See, e.g., Adkins v.

State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Lofton v. State, 898 S.W.2d

246, 249 (Tenn. Crim. App. 1994). The record reflects that Attorney Wilkinson

considered whether to make an early motion to change venue and made a tactical

decision not to do so. As with the other strategic decisions made by Wilkinson in

his representation of the petitioner at trial, we will not reevaluate his decision with

the benefit of hindsight. See Cox, 880 S.W.2d at 718. Moreover, the post-

conviction court noted there was no proof the trial court would have acted differently

upon a timely motion for change of venue. See Adkins, 911 S.W.2d 343. The

record demonstrates no prejudice to the petitioner because of counsel’s failure to

file a pre-trial motion for change of venue. Strickland, 466 U.S. at 697, 104 S. Ct.

at 2069. Thus, the lower court correctly denied relief on this issue.

D

In the petitioner's last allegation of ineffective assistance of counsel,

5
Although most of the jurors had some knowledge of the petitioner's case
from reading about it in the newspaper, the voir dire transcript confirms that the
jurors' knowledge about the case was extremely limited. To be sure, some of the
jurors could not even recall the substance of what they had read about the case.
All of the jurors confirmed that they could disregard any previous information
they had received about the case and make a determination based on the
evidence developed in court. See State v. Harris, 839 S.W.2d 54, 63-64 (Tenn.
1992) (trial court did not abuse its discretion in denying motion to change venue
where jurors had limited knowledge of case from reading about it and all
indicated they could set aside pretrial information and return a verdict based
solely upon the evidence).

9
he contends trial counsel failed to investigate and present evidence that he did not

fire the bullet that killed the victim; rather, someone on the victim's property

accidentally shot the victim while attempting to shoot the petitioner. In support of

this newly developed theory, the petitioner contends the gun he fired during the fatal

confrontation with the victim was loaded with only one type of bullet, while there is

evidence another type of bullet may have been recovered from the body of the

victim. The evidence developed at trial included the testimony of a Tennessee

Bureau of Investigation Crime Laboratory ballistics expert. This expert testified the

bullet retrieved from the victim's body had the same characteristics as those which

were test-fired at the crime lab from the gun used by the petitioner. The TBI expert

could not, however, conclusively determine that the bullet recovered from the

victim's body was fired from the weapon used by the petitioner. Significantly, the

TBI expert also testified, contrary to the petitioner's housemate's subsequent

testimony at the post-conviction hearing, that the gun taken into evidence was

loaded with two different types of bullets. The petitioner's father testified at the

post-conviction hearing he had done some investigation of the type of bullet his son

contends was in the gun and determined that this type of bullet would not be "solid

lead" as the TBI expert testified, and further, this type of bullet would not create a

"dirty" wound as described in the victim's autopsy report.6

The petitioner finds fault with his counsel's failure to discover these

facts prior to trial. He further contends his attorney's failure to present the

alternative defense is not insulated from our review as a matter of trial strategy

because it was not an informed decision made after investigation. However, the

petitioner has developed no evidence which would have put the public defender on

6
As we understand the evidence, however, the second type of bullet the
TBI expert reported to be in the gun was "solid lead" and would produce a "dirty
wound."

10
notice prior to trial that this avenue was worthy of investigation. The petitioner's

father first realized something was wrong when he heard the TBI expert's testimony

during the trial. Similarly, the petitioner's housemate did not realize until he

reviewed the trial transcripts that there was evidence he had two types of bullets in

his gun. Although defense counsel surely had the TBI lab report prior to trial, the

petitioner has presented no evidence that the public defender was made aware of

his contention there was only one type of bullet in the gun, rather than two.

Moreover, the petitioner presented no evidence which would serve to raise a

reasonable suspicion with counsel that the matter warranted further investigation.

Significantly, Attorney W ilkinson testified the petitioner never raised any question

as to whether he shot the victim, and the only real issue for them to deal with was

whether the shooting was justified. Mr. Wilkinson testified that he developed the

theory of self-defense based on his conversations with the petitioner and the

investigation he conducted.7 Further, Mr. Wilkinson opined that it is ineffective to

present a jury with alternative theories of a case.8

The lower court found there was no "repeated allegation" the petitioner

did not shoot the victim and that self-defense was the only available defense based

on the petitioner's statements to counsel and the physical evidence. Further, the

lower court found that the petitioner failed to take exception to his counsel's choice

of defense after lengthy consultation. Accordingly, the post-conviction court denied

7
The public defender testified his investigation included visiting the area,
talking to neighbors and friends, looking for an alleged eyewitness, interviewing
the victim's medical providers, investigating the owners of vehicles identified by
the petitioner and obtaining prior law enforcement complaints between the
petitioner and the Walkers.
8
We note that the two strategies here in question are inherently
inconsistent. In employing a self-defense strategy, the petitioner pursued the
theory he justifiably killed the victim. In pursuing the theory he now espouses, he
would be required to contend he did not shoot the victim at all, someone else
did. It is difficult to imagine a defendant who truly believed the latter abiding by a
trial strategy of the former.

11
relief. We find nothing which preponderates against these findings of the trial court.

Moreover, the choice of a defense strategy is inherently tactical and not subject to

review where the decision is informed and based on adequate preparation. Hellard,

629 S.W.2d at 9. The record reflects the petitioner's counsel chose the strategy

based on consultation with his client and investigation. Having found no evidence

which calls into question the lower court's denial of relief on this issue, we must hold

that the petitioner is not entitled to relief based on his post-conviction disagreement

with his counsel's trial strategy.

II

The petitioner's next complaint is that he was denied due process

because one of the jurors "withheld information about her knowledge of the case

and her relationship with the victim's family." The petitioner argues that the alleged

dishonesty of Juror Lisa Wall gives rise to the presumption of bias and partiality,

and this bias cannot be cured except by new trial.

Challenges to juror qualifications generally fall into two categories at

common law -- propter defectum or propter affectum. Partin v. Henderson, 686

S.W.2d 587, 589 (Tenn. Ct. App. 1984). Objections based on general

disqualifications, such as alienage, family relationship or statutory mandate are

classified as propter defectum and must be challenged prior to the return of the jury

verdict. State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). On the

other hand, objections based on bias, prejudice or partiality toward a party to the

proceeding which is shown or presumed are classified as propter affectum. Durham

v. State, 182 Tenn. 577, 582, 188 Tenn. 555, 559 (Tenn. 1945). Propter affectum

challenges may be made after the return of the jury verdict. State v. Furlough, 797

S.W.2d 631, 652 (Tenn. Crim. App. 1990). The petitioner’s challenge falls in the

category of propter affectum.

12
 The party alleging juror bias or partiality bears the burden of proof on

the issue. See State v. Taylor, 669 S.W.2d 694, 700 (Tenn. Crim. App. 1983).

When a juror wilfully conceals or fails to disclose information which calls into

question her impartiality, a presumption of prejudice arises. Durham, 182 Tenn. at

584,188 S.W.2d at 559; see Hyatt v. State, 221 Tenn. 644, 646, 430 S.W.2d 129,

130 (Tenn. 1967) (silence on an issue considered a negative response).

The petitioner alleges Juror Wall was dishonest with the court because

she failed to reveal that her mother's first cousin was a co-worker and friend of the

victim's during his lifetime. Further, he contends, two of her mother's first cousin's

children are friends of the victim's sons and have participated in harassing the

petitioner and Mr. Scott. The petitioner also testified he had seen Juror Wall visiting

the victim's home several times.

The petitioner testified Mr. Wilkinson did not consult with him during

the jury selection process; however, he offers no explanation of why he did not bring

Juror Wall's alleged presence at the victim's home to W ilkinson's attention during

jury selection. Mr. Wilkinson testified the petitioner voiced his satisfaction with the

jury, and Wilkinson did not learn of any alleged connection between Juror Wall and

the victim's family (other than those revealed in voir dire) until a break in the

proceedings when the petitioner's housemate or father belatedly brought the matter

to his attention.

The transcript of voir dire memorializes that prior to trial Juror Wall

read about the petitioner's case in the newspaper but she did not know any of the

parties involved. She admitted she had maternal relatives in the community where

the incident occurred and she had heard about the case through them, although

they provided no information beyond what had been in the newspapers. Further,

13
she acknowledged that her maternal relatives probably knew the people involved,

but she was not sure of this. She agreed she did not have any preconceived ideas

about the petitioner's guilt or innocence and could return a verdict based on the

evidence alone. Notably, Juror Wall was not questioned at the post-conviction

hearing. The petitioner's post-conviction counsel made an oral motion at the

beginning of the hearing for the court to subpoena the jury, and specifically Ms.

Wall, which the judge took under advisement "until such a time as [he] hear[d]

whatever it is [the petitioner] propose[d] to develop in this case." The petitioner's

counsel did not thereafter renew this motion at the conclusion of his proof, and as

a result Juror Wall's testimony was not submitted.

The court below found that the issue of jury bias was previously

determined in the direct appeal, and in any event, nothing "of significance" was

developed to support the petitioner's contention. We begin our analysis by noting

that this court has previously considered the issue of jury bias in the context of the

motion for change of venue. We did not, however, have before us on direct appeal

the allegations that Juror Wall was dishonest with the trial court, although it appears

from the record that all the information before us now was known and available to

the petitioner at the time of his direct appeal. Under ordinary circumstances, we

might well find this issue waived by failure to raise it on direct appeal; however, the

state did not raise a waiver defense in its answer to the petition or at the hearing.

See Tenn. Code Ann. § 40-30-112 (1990) (repealed 1995). Neither has the state

argued waiver in its brief to this court. Although noting the apparent waiver, the trial

court considered the issue on its merits. We will do the same. See Coker v. State,

911 S.W.2d 357, 366-67 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995).

The essential issue is whether Juror Wall was dishonest during voir

dire. If she was, the petitioner will have raised the presumption of prejudice. After

14
comparing the evidence presented by the petitioner in the post-conviction hearing

with the voir dire portion of the trial transcript, we find that the only conflict is

whether Juror Wall personally knew the victim's family. She stated she did not,

while the petitioner testified he had seen her at the victim's home on several

occasions.9 The lower court obviously discredited the testimony of the petitioner on

this issue, which was its prerogative to do as the finder of fact. We cannot say that

the evidence preponderates against this finding. Thus, the petitioner has failed to

establish any facts which support a denial of due process, and the trial court's

determination on this issue must be affirmed.

III

Next, in an issue related to I(A) above, the petitioner contends his

counsel's failure to question the venire about their views on homosexuality denied

him his constitutional guarantees of fundamental fairness and due process. The

caselaw cited by the petitioner in his brief, however, deals with ineffective

assistance of counsel and the trial court's failure to question jurors on the issue of

racial prejudice. The petitioner has cited no authority for the proposition he

advances, and we have already determined his counsel was not ineffective in this

regard. Having found no error of counsel, we fail to see how the petitioner has

suffered any other constitutional injury. Moreover, as we found on direct appeal, we

fail to find evidence preponderating against the trial court's finding that the jury had

any knowledge or was in any way influenced by any purported allegation the

petitioner was homosexual. Joseph Mason Rhinerson, slip op. at 9; accord State

v. McMullen, 20 Kan. App. 2d 985, 894 P.2d 251 (defendant not entitled to new trial

absent showing that undisclosed homosexual bias of one juror affected the juror's

9
The petitioner contends in his brief that Mr. Scott likewise testified he had
seen Juror Wall at the victim's home. Contrary to the petitioner's citations to the
post-conviction hearing transcript, the record does not bear out his assertion.

15
ability to return a fair and impartial verdict), review denied (Kan. 1995). Accordingly,

we affirm the trial court's denial of relief on this ground.

IV

Finally, we address an issue of general due process of law which the

petitioner raises in his brief. He captions the issue as a matter of ineffective

assistance of trial counsel arising from the failure to move for a mistrial or otherwise

object in response to several occurrences at trial: (1) the state’s improper cross-

examination of the petitioner and another defense witness; (2) an emotional

outburst in the courtroom by the wife of the victim; (3) the victim’s family and friends

verbally abusing the petitioner in view of the jury; and (4) the presence in the

courtroom of Shriners in fraternal garb.

We have dealt with the effective assistance of counsel issues above

in section I(B). However, although the petitioner captions the above four issues as

a matter of the ineffective assistance of counsel, they are transmogrified in the

petitioner’s brief into a complaint about the free-standing denial of due process of

law in the form of the abridgment of his right to a fair trial.

The court found that, with the exception of the alleged improper

questioning by the prosecution, the cited events did not occur during the trial. The

record on this appeal does not preponderate against this finding, and we are

precluded from disturbing these findings of the post-conviction court.

The remaining issue is the alleged prosecutorial misconduct. We note

that the petitioner has not argued in any earlier stage of these proceedings that the

prosecutor’s conduct in cross-examining the petitioner and another trial witness

16
abridged his right to a fair trial. For this reason, we could decline to address this

issue raised for the first time on appeal. See Butler, 789 S.W.2d at 902; Tenn. R.

App. P. 36. However, the record affords us an opportunity to review the merits of

the petitioner’s due-process/fair-trial claim, and we elect to consider the issue.

The prohibition of certain prosecutorial misconduct is grounded in the

constitutional assurance of a fair trial, perhaps the broadest and most fundamental

manifestation of general due process. Smith v. Phillips, 455 U.S. 209, 219, 102 S.

Ct. 940, 947 (1982). See Coker v. State, 911 S.W.2d 357, 366 (Tenn. Crim. App.),

perm. app. denied (Tenn. 1995); State v. Hicks, 618 S.W.2d 510, 516 (Tenn. Crim.

App. 1981). Within the context of the rules governing our review of the dismissal

of a post-conviction petition, discussed supra, the general test to be applied to

instances of prosecutorial misconduct is “whether the improper conduct could have

affected the verdict to the prejudice of the defendant.” Harrington v. State, 215

Tenn. 338, 340, 385 S.W.2d 758, 759 (1965). We have previously identified five

factors which should be considered in making this determination:

1. The conduct complained of, viewed in context and in
light of the facts and circumstances of the case.

2. The curative measures undertaken by the court and
the prosecution.

3. The intent of the prosecutor in making the improper
statement.

4. The cumulative effect of the improper conduct and
any other errors in the record.

5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

In the case now before us, the petitioner complains of comments and

innuendos made by the prosecutor during cross-examination of defense witnesses

at trial. To summarize, the petitioner objects to innuendos by the prosecutor that

17
the petitioner was an “outsider and invader in the neighborhood,” in the petitioner’s

words; that he was untruthful; that dogs which cowed during the altercation showed

more sense than did the petitioner; that he was guilty of conduct that might have

provoked an assault; and that he and his homosexual friend casually walked away

arm-in-arm after the petitioner shot the victim. The petitioner also complains that

the prosecutor referred to the petitioner as Mr. Scott’s “friend” during the cross-

examination of Scott.

Upon our review of the record, including the transcript of the

proceedings at the petitioner’s trial, we find no discernible misconduct of the

prosecutor in cross-examining the petitioner and witness Scott. The cross-

examination was vigorous, and during the cross-examination of petitioner the

conversation between the prosecutor and the petitioner was contentious. In the

overall context of the cross-examination and of the courtroom atmosphere, the

prosecutor’s conduct was not improper. The cross-examination may have been

detrimental to the petitioner, but in our adversarial system, cross-examination of a

witness, especially a party-witness, is calculated to damage the proponent’s case.

In the absence of a threshold instance of misconduct, we have no occasion to

consider the factors enumerated in Judge, see Coker, 911 S.W.2d at 369

(prosecutor’s actions which we deemed to be proper were discarded and the Judge

factors were not applied), nor do we need to assess the effect on the verdict. Any

possible effect is permissible and incidental to our adversarial system of criminal

justice. Therefore, we conclude that the record does not support the petitioner’s

claim that his right to a fair trial was abridged by prosecutorial misconduct.

In conclusion, the appellant has failed to demonstrate that the

evidence preponderates against the trial court's dismissal of his post-conviction

petition. The judgment of the trial court is affirmed.

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 _______________________________

CURWOOD WITT, JUDGE

CONCUR:

_______________________________

JOSEPH B. JONES, PRESIDING JUDGE

_______________________________

GARY R. WADE, JUDGE

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