IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1999 May 19, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
BOBBY ALLEN JOYNER, ) C.C.A. NO. 03C01-9807-CR-00260
)
Appe llant, )
) SULLIVAN COUNTY
V. )
)
) HON. LYNN W. BROWN, JUDGE
STATE OF TE NNE SSE E, )
)
Appellee. ) (POST-CONVICTION)
FOR THE APPELLANT: FOR THE APPELLEE:
BOB BY AL LEN JOYN ER, pro se JOHN KNOX WALKUP
N.E.C.C. #114016 Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683 ELLEN H. POLLACK
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
H. GREELEY WELLS, JR.
District Attorney General
140 Blountville Bypass
P.O. Box 526
Blountville, TN 37617-0526
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, B obby A llen Joyne r, appea ls as of right the trial c ourt’s
dismissal of his petition for post-co nviction relief. After a careful review of the record,
we affirm the judgm ent of the tria l court.
On December 17, 1992, Petitioner was convicted of first degree murder and
sentenced to life imprisonment. Petitioner appealed and this Court affirmed the
judgment of the trial court. See State v. Bobby Allen Joyner, C.C.A. No. 03C01-
9411-CR-00412, Sullivan County (Tenn. Crim. App. Knoxville, Jan. 29, 1996), perm.
to appeal denied (Tenn. 1996). O n June 20, 199 7, Petitione r filed a petition for post-
conviction relief which was subsequently dismissed without an evidentiary hearing.
Petitione r filed a time ly notice of a ppeal.
I. Exculpatory Evidence
First, Petitioner asserts in his petition that the State fa iled to d isclose favora ble
evidence to him. The evidence he claims is exculpatory is a State witness’s alleged
prior criminal record and the fact that the State did not disclose to him that
Petition er’s defense counsel had previously represented a witness for the State.
Petitioner did not raise the issu e conc erning th e prior crim inal record of a State
witness on direct a ppeal. W e agree with the trial court’s order stating that the
“dismissal of this allega tion is warra nted be cause no facts are stated to support the
bare allegations of the [P]etitioner.” See Tenn . Sup. C t. R. 28,
§ 5(E)(4 ), § 5(F )(3), an d § 6(B )(4)(c). P etitioner does not state whose criminal
record was not divulged, what convictions it would have revealed, and even whether
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the State had this witness’s criminal record in its pos sess ion. Th e Petitio ner did
raise the issue abo ut his counse l’s prior representation of a State witness , Robert
McD owell. How ever, h e cou ched it in terms of an ine ffective assistance of counsel
claim, and this Court found that although Petitioner’s defense counsel “had
represented McD owell in a previo us ca se, the re was no sh owing of a co nflict of
interest or that this prevented the [Petitioner] from rec eiving a fair trial.” We find that
although this issu e was raised in a diffe rent co ntext, P etitione r shou ld have also
presented on direct appeal the sp ecific issue he now raises. Therefore, it has been
waived. See Tenn . Code Ann. § 4 0-30-20 6(g) and -210(f).
II. Double Jeopardy
Petitioner argues that the jury heard evidence of his prior criminal record and
that because he had already been punished for thos e crim es, it co nstitute d dou ble
jeopardy. The u se of th e evide nce in no wa y cons tituted double jeopardy, and
therefore, we do n ot find this issue p roper for pos t-conv iction co nside ration a s it
does not state the deprivation of any co nstitutiona l right. See Tenn. Code Ann. § 40-
30-203.
III. Unconstitutionally Selecte d Jury
Petitioner asserts in this issue that “[m]any jurors had conflict(s) of interest
against the defen dant.” Specifically, he mentions that one juror was a friend of the
district attorney, some jurors were victims of crimes themselves, and another juror
was a friend and business associate of a judge. Petitioner did not raise this on direct
appe al, and therefore the issue is waived. See Tenn. Code Ann. § 40-30-206(g) and
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-210(f). Also, we do not find this issue proper for post-conviction consideration
because the facts alleged do not constitute the dep rivation of an y constitutio nal right.
See Tenn. Code Ann. § 40-30-203.
IV. Assistance of Counsel
Petitioner makes numerous claims in this issue that his trial counsel was
ineffective. Althoug h Petitione r did not rais e som e of the sp ecific facts now raised,
he did make the general claim of ineffective assistance of counsel on direct appeal
and this Court determ ined it to be without m erit. We no te that while ineffective
assistance of coun sel claim s ma y be rais ed on direct a ppea l mere ly on the record,
such a practice is “fraught with peril.” See, e.g., Thom pson v. S tate, 958 S.W.2d
156, 161 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1997). Generally, the
practice is disfavored because steps are not taken to prepare an adequate re cord
on the issue in the trial court. Raising the issue on direct appeal is a risk assumed
by Petitioner and h is couns el, but it does not ma ke this C ourt’s actio n any less of a
ruling on the me rits after a review of the record before it. Petitioner was allowed the
opportu nity to present the issue of ineffective assistance of counsel on dire ct app eal,
and therefo re, this c laim has been p reviou sly dete rmine d and is not co gniza ble in
this petition. See Tenn . Code Ann. § 4 0-30-20 6(h).
V. Illegal Evidence
Petitioner asserts th at an “[o]ld p hoto I.D. card [of him] was illegally introduced
to the jury.” We agree w ith the cou rt’s finding tha t this is not an issue for p ost-
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conviction relief sin ce it is not an ab ridgme nt of any co nstitutiona l right. See Tenn.
Code Ann. § 40-30-203. Furthermore, this issue was not raised on direct appeal and
has the refore be en waive d. See Tenn. C ode Ann . § 40-30-206 (g) and -210(f).
VI. Other Grounds
Finally, Petitioner alleges “[p]rejudicial plain errors of the trial court, such as
refusing to allow coun sel to withdraw, refusin g to allow a continu ance to sec ure
certain defense witnesses, failing to properly instruct the jury on 1st [sic] degree
murd er’s premeditation and deliberation essential elements, amon gst other things.”
Petitioner states no other facts and we agree with the trial court that no constitutional
deprivation exists by couns el not bein g allowed to withdraw as allege d. See Tenn.
Code Ann. § 40-30-203. Furthermore, this issue should have been raised on direct
appe al. Tenn . Code Ann. § 40-30-206(g) and -210(f). The issues of a continuance
and jury instructions were de cided ag ainst Pe titioner on d irect appe al. See Tenn.
Code Ann. § 40-30-206(h). The issue regarding jury instructions could have been
raised on direct appeal, and is waived.
Since we are able to determine conclusively from Petitioner’s pro se petition
that no relie f is availa ble, it wa s not e rror for th e trial court to dismiss the petition
without an evidentiary hea ring and withou t the appointm ent of counse l for Petitioner.
See Swan son v. Sta te, 749 S.W .2d 731 (Te nn. 1988).
____________________________________
THOMAS T. W OODALL, Judge
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CONCUR:
___________________________________
JERRY L. SMITH, Judge
___________________________________
L. T. LAFFERTY, Senior Judge
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Bobby Allen Joyner v. State
Combined Opinion