IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED SEPTEMBER 1998 SESSION November 4, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
SCOTTIE DEWAYNE BURKE, ) ) C.C.A. NO. 03C01-9709-CR-00419 Appellant, ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
LISA M. MACK JOHN KNOX WALKUP 846 Oak St. Attorney General & Reporter Chattanooga, TN 37403 ELIZABETH B. MARNEY Asst. Attorney General 425 Fifth Ave., North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243-0493
WILLIAM H. COX, III District Attorney General
CALDWELL HUCKABAY Asst. District Attorney General Courts Bldg., Room 300 Chattanooga, TN 37402
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
The petitioner was convicted by a jury of first-degree felony murder,
aggravated robbery, and aggravated assault.1 He was sentenced to life imprisonment
for the murder, a concurrent eight year term for the robbery, and a consecutive six year
term for the assault. The petitioner's convictions and sentences were affirmed on direct
appeal. State v. Scottie Dewayne Burke, No. 03C01-9208-CR-00265, Hamilton County
(Tenn. Crim. App. filed June 10, 1993, at Knoxville). In this petition for post-conviction
relief filed in August 1995, the petitioner contends that he received ineffective assistance
of counsel at trial and on direct appeal. 2 The court below denied relief and, upon our
review of the record, we affirm.
In this appeal, the petitioner contends that his lawyer was ineffective in the
following ways:
1. Failing to properly investigate the case;
2. Failing to sufficiently voir dire prospective jurors, thereby accepting a juror who had “prior knowledge” about the petitioner which may have been used to “taint” other jurors;
3. Failing to contest the admissibility of the petitioner's statement to the police;
4. Failing to object to the trial court's instruction on voluntary manslaughter; and
5. Failing to defend and appeal the petitioner's sentences in a competent manner.
After hearing testimony from the petitioner and his trial counsel (who also handled the
direct appeal), the court below credited trial counsel's testimony over the petitioner's. As
1 The crimes were committed in 1991; the petitioner was tried in 1992.
2 Although unclear, the amended petition also seems to raise as a separate constitutional violation that the petitioner's confession was coerced. The court below found that no evidence had been introduced in support of this allegation. Other than in the context of ineffective assistance, this alleged grou nd fo r relief is not ass erted in this a ppe al.
2 a result, the court below found that, while trial counsel had made some errors during the
trial and on appeal, the petitioner had not carried his burden of proving the allegations in
his petition, that his lawyer's performance was within the required range of competence,
and that, even if it were not, the petitioner failed to prove that he was thereby prejudiced.
In reviewing the petitioner’s Sixth Amendment claim of ineffective
assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This Court should
not second-guess trial counsel’s tactical and strategic choices unless those choices were
uninformed because of inadequate preparation, Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982), and counsel should not be deemed to have been ineffective merely because a
different procedure or strategy might have produced a different result. Williams v. State,
599 S.W.2d 276, 280 (Tenn. Crim. App. 1980). To prevail on a claim of ineffective
counsel, a petitioner “must show that counsel’s representation fell below an objective
standard of reasonableness” and that this performance prejudiced the defense. There
must be a reasonable probability that but for counsel’s error the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694
(1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his petition by clear and convincing evidence. T.C.A. § 40-30-210(f).
Furthermore, the factual findings of the trial court in hearings “are conclusive on appeal
unless the evidence preponderates against the judgment.” State v. Buford, 666 S.W.2d
473, 475 (Tenn. Crim. App. 1983).
The petitioner's claim that his trial attorney did not sufficiently investigate
3 his case is based on trial counsel's failure to interview certain State witnesses. None of
these witnesses testified at the post-conviction hearing, however. Thus, we have no
proof of how these witnesses' testimony could have been made less harmful to the
petitioner had they been previously interviewed by trial counsel. In other words, the
petitioner has failed to prove how he was prejudiced by his lawyer's handling of these
witnesses. This issue is without merit.
With respect to counsel's voir dire of the jury, the record contains no proof
whatsoever of how the juror who allegedly knew the petitioner wrongfully influenced the
jury with his “prior knowledge.” No prejudice having been shown from trial counsel's
failure to remove this juror, this issue is without merit.
As to the petitioner's statement to the police, he admitted at the post-
conviction hearing that he had not informed his lawyer of any circumstances surrounding
the statement which would have supported its exclusion. Accordingly, his lawyer did not
act incompetently by not challenging the statement's admissibility.
As to the trial court's instruction on voluntary manslaughter, the court below
concluded that trial counsel should have requested a correction and, failing that, should
have raised the issue on appeal. We agree. In its instruction on voluntary manslaughter,
the trial court stated:
The distinction between voluntary manslaughter and second degree murder is that voluntary manslaughter requires that the killing resulted from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner . . . and the act of killing will be imputed to heat of blood and passion, rather than malice, if no undue advantage be taken by the party doing the killing. [e.s.]
Thus, the trial court improperly implied that malice was an element of second-degree
4 murder.3
Criminal defendants have a constitutional right to a correct and complete
charge of the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). A constitutional
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED SEPTEMBER 1998 SESSION November 4, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
SCOTTIE DEWAYNE BURKE, ) ) C.C.A. NO. 03C01-9709-CR-00419 Appellant, ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
LISA M. MACK JOHN KNOX WALKUP 846 Oak St. Attorney General & Reporter Chattanooga, TN 37403 ELIZABETH B. MARNEY Asst. Attorney General 425 Fifth Ave., North 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243-0493
WILLIAM H. COX, III District Attorney General
CALDWELL HUCKABAY Asst. District Attorney General Courts Bldg., Room 300 Chattanooga, TN 37402
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
The petitioner was convicted by a jury of first-degree felony murder,
aggravated robbery, and aggravated assault.1 He was sentenced to life imprisonment
for the murder, a concurrent eight year term for the robbery, and a consecutive six year
term for the assault. The petitioner's convictions and sentences were affirmed on direct
appeal. State v. Scottie Dewayne Burke, No. 03C01-9208-CR-00265, Hamilton County
(Tenn. Crim. App. filed June 10, 1993, at Knoxville). In this petition for post-conviction
relief filed in August 1995, the petitioner contends that he received ineffective assistance
of counsel at trial and on direct appeal. 2 The court below denied relief and, upon our
review of the record, we affirm.
In this appeal, the petitioner contends that his lawyer was ineffective in the
following ways:
1. Failing to properly investigate the case;
2. Failing to sufficiently voir dire prospective jurors, thereby accepting a juror who had “prior knowledge” about the petitioner which may have been used to “taint” other jurors;
3. Failing to contest the admissibility of the petitioner's statement to the police;
4. Failing to object to the trial court's instruction on voluntary manslaughter; and
5. Failing to defend and appeal the petitioner's sentences in a competent manner.
After hearing testimony from the petitioner and his trial counsel (who also handled the
direct appeal), the court below credited trial counsel's testimony over the petitioner's. As
1 The crimes were committed in 1991; the petitioner was tried in 1992.
2 Although unclear, the amended petition also seems to raise as a separate constitutional violation that the petitioner's confession was coerced. The court below found that no evidence had been introduced in support of this allegation. Other than in the context of ineffective assistance, this alleged grou nd fo r relief is not ass erted in this a ppe al.
2 a result, the court below found that, while trial counsel had made some errors during the
trial and on appeal, the petitioner had not carried his burden of proving the allegations in
his petition, that his lawyer's performance was within the required range of competence,
and that, even if it were not, the petitioner failed to prove that he was thereby prejudiced.
In reviewing the petitioner’s Sixth Amendment claim of ineffective
assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This Court should
not second-guess trial counsel’s tactical and strategic choices unless those choices were
uninformed because of inadequate preparation, Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982), and counsel should not be deemed to have been ineffective merely because a
different procedure or strategy might have produced a different result. Williams v. State,
599 S.W.2d 276, 280 (Tenn. Crim. App. 1980). To prevail on a claim of ineffective
counsel, a petitioner “must show that counsel’s representation fell below an objective
standard of reasonableness” and that this performance prejudiced the defense. There
must be a reasonable probability that but for counsel’s error the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694
(1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his petition by clear and convincing evidence. T.C.A. § 40-30-210(f).
Furthermore, the factual findings of the trial court in hearings “are conclusive on appeal
unless the evidence preponderates against the judgment.” State v. Buford, 666 S.W.2d
473, 475 (Tenn. Crim. App. 1983).
The petitioner's claim that his trial attorney did not sufficiently investigate
3 his case is based on trial counsel's failure to interview certain State witnesses. None of
these witnesses testified at the post-conviction hearing, however. Thus, we have no
proof of how these witnesses' testimony could have been made less harmful to the
petitioner had they been previously interviewed by trial counsel. In other words, the
petitioner has failed to prove how he was prejudiced by his lawyer's handling of these
witnesses. This issue is without merit.
With respect to counsel's voir dire of the jury, the record contains no proof
whatsoever of how the juror who allegedly knew the petitioner wrongfully influenced the
jury with his “prior knowledge.” No prejudice having been shown from trial counsel's
failure to remove this juror, this issue is without merit.
As to the petitioner's statement to the police, he admitted at the post-
conviction hearing that he had not informed his lawyer of any circumstances surrounding
the statement which would have supported its exclusion. Accordingly, his lawyer did not
act incompetently by not challenging the statement's admissibility.
As to the trial court's instruction on voluntary manslaughter, the court below
concluded that trial counsel should have requested a correction and, failing that, should
have raised the issue on appeal. We agree. In its instruction on voluntary manslaughter,
the trial court stated:
The distinction between voluntary manslaughter and second degree murder is that voluntary manslaughter requires that the killing resulted from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner . . . and the act of killing will be imputed to heat of blood and passion, rather than malice, if no undue advantage be taken by the party doing the killing. [e.s.]
Thus, the trial court improperly implied that malice was an element of second-degree
4 murder.3
Criminal defendants have a constitutional right to a correct and complete
charge of the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). A constitutional
violation occurs upon an erroneous jury instruction unless the error is harmless beyond
a reasonable doubt. State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989). Where
the error is harmless beyond a reasonable doubt, however, it follows that trial counsel's
failure to object to the erroneous instruction did not prejudice the petitioner.
In this case, the trial court further instructed the jury:
If you so find the defendant guilty of murder in the first degree . . . it would not be necessary for you to consider the lesser offenses of murder in the second degree, voluntary manslaughter, and criminal negligent homicide. However, if you find the defendant not guilty of murder in the first degree, you will then determine whether you find the defendant guilty beyond a reasonable doubt of any one of the following offenses: Murder in the Second Degree Voluntary Manslaughter Criminally Negligent Homicide [e.s.]
Juries are presumed to follow instructions. State v. Blackmon, 701 S.W.2d 228, 233
(Tenn. Crim. App. 1985). Thus, because the jury convicted the petitioner of first-degree
felony murder, it never considered the instructions on second-degree murder or voluntary
manslaughter. Any error was therefore harmless beyond a reasonable doubt and the
petitioner suffered no prejudice from his lawyer's inaction. See, e.g., State v. Antonio M.
Byrd, No. 02C01-9508-CR-00232, Shelby County (Tenn. Crim. App. filed January 2,
1997, at Jackson) (where jury convicted the defendant of premeditated murder after
having been instructed to consider premeditated murder before felony murder, erroneous
instruction on felony murder was “mere surplusage” and error was harmless beyond a
3 “Second degree murder is: A know ing killing of another.” T.C.A. § 39-13-210(a)(1) (1991).
5 reasonable doubt). This issue is without merit.4
In his final issue, the petitioner contends that his lawyer did not adequately
represent him at his sentencing hearing and did not adequately appeal his sentences. 5
He complains that his lawyer “did not present any witnesses for sentencing, did not argue
[as a] mitigating factor [the] Petitioner[']s age [of] 18 years old at the time of the incident,
[introduced] no evidence about Petitioner's low IQ and did not verify the accuracy of
Petitioner's prior record as represented in the sentencing report.” He argues that he was
thereby prejudiced “by reducing the probability of a lighter sentence.”
We first note that, because the State did not seek the death penalty, the life
sentence imposed for the first-degree murder conviction was statutorily required. See
T.C.A. § 39-13-204 (1991). Moreover, the sentence for the aggravated robbery was the
minimum for that crime6 and was run concurrently; obviously, trial counsel could not have
improved on this. Apparently, then, the petitioner is convinced that he should have
received a shorter and/or concurrent sentence on the aggravated assault offense.7
In considering the petitioner's sentences on direct appeal, this Court
examined the record at trial and held that “the record justifies the trial court's
determination under T.C.A. § 40-35-115(b)(4) that the defendant is a dangerous offender
4 In his brief, the petitioner attempts to raise this jury instruction issue as a separate ground for post-conviction relief. However, it was not raised as such in his petition nor was it raised on direct appeal. Accordingly, other than in the context of ineffective assistance of counsel, this issue has been waived. T.C.A. § 40-30-206(g).
5 W e consider the petitioner's sentencing issues only in the context of his claim of ineffective assistance of counsel. Without an allegation that a sentence is void or voidable because of the abridgement of a constitutional right, sentencing issues are not reviewable in a post-conviction procee ding. See T.C.A. § 40-30-203.
6 The applicable range for this offense was eight to twelve years. T.C.A. §§ 40-35-112(a)(2), 39- 13-402(b).
7 The applicable range for this offense was three to six years. T.C.A. §§ 40-35-112(a)(3), 39-13- 102(d).
6 whose behavior indicates little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high for the purposes of ordering the
aggravated assault sentence to be run consecutively.” State v. Scottie Dewayne Burke,
No. 03C01-9208-CR-00265, Hamilton County (Tenn. Crim. App. filed June 10, 1993, at
Knoxville). The petitioner presented no proof at the hearing below which demonstrated
that his attorney could have prevented this classification. Accordingly, his complaint
about the consecutive sentence on the assault conviction is without merit.
As to the length of the sentence on the assault offense, the trial court
enhanced the range to the maximum time of six years after finding that the assault had
been committed while the petitioner was on probation. See T.C.A. § 40-35-114(13)(c).
On direct appeal, this Court further found from the trial record that he had committed
delinquent acts as a juvenile and that the aggravated assault had resulted in particularly
great injuries. Both of these factors could properly have been used to enhance the
petitioner's sentence on the aggravated assault offense. See T.C.A. § 40-35-114(1) &
(6). The petitioner has failed to show that he had sufficient mitigating proof at his
disposal to counteract the enhancement of his sentence. This issue is without merit.
The judgment below is affirmed.
______________________________ JOHN H. PEAY, Judge
CONCUR:
__________________________________ JOSEPH M. TIPTON, Judge
__________________________________ DAVID G. HAYES, Judge