IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JUNE 1997 SESSION January 15, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk GREGORY MORGAN, ) ) Appellant, ) No. 03C01-9611-CR-00404 ) ) Bradley County v. ) ) Honorable Mayo L. Mashburn, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant: For the Appellee:
Ashley L. Ownby Charles W. Burson 180 N. Ocoee Street Attorney General of Tennessee P.O. Box 176 and Cleveland, TN 37364-0176 Marvin E. Clements, Jr. Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493
Jerry N. Estes District Attorney General 203 E. Madison Avenue Athens, TN 37303-0647
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Gregory Morgan, appeals as of right from the Bradley
County Criminal Court’s order denying him post-conviction relief from his 1990 first
degree felony murder conviction and resulting life sentence. The judgment of
conviction was affirmed on appeal. State v. Morgan, 825 S.W.2d 113 (Tenn. Crim.
App. 1991). The petitioner presents the following issues for our review:
I. Whether the petitioner’s due process rights were violated in that:
(A) The trial court failed to give a jury instruction regarding the effect of the petitioner’s voluntary intoxication;
(B) The trial court improperly instructed the jury that it should stop deliberations once it found the petitioner guilty of felony murder, thus restricting consideration of self-defense or provocation evidence;
(C) The trial court improperly instructed the jury so as to direct a finding on an essential element of first degree murder; and
(D) The trial court improperly instructed the jury on reasonable doubt by its use of the phrases “moral certainty” and “let the mind rest.”
II. Whether the petitioner received the ineffective assistance of counsel in that:
(A) His trial attorneys refused to allow him to testify;
(B) His trial attorneys failed to secure the testimony of a material defense witness;
(C) His trial attorneys failed to make a proper record for review of the claim that jurors should have been stricken for cause; and
(D) His trial attorneys failed to challenge certain jury instructions.
We conclude that the post-conviction court did not err and properly denied the petitioner
relief.
2 CONVICTING TRIAL
The petitioner was originally charged with felony murder, premeditated
and deliberate murder, armed robbery and grand larceny. The case dealt with events
that occurred at an Interstate 75 rest area. The details of the evidence are provided in
this court’s opinion on the direct appeal. See Morgan, 825 S.W.2d at 115-16.
Essentially, the state’s proof showed that the petitioner and Clifton Swift, traveling from
Florida, stopped at the rest area, ostensibly to steal a car. The petitioner met the
victim, and the two left the rest area twice in the victim’s car. Only the petitioner
returned the second time. Swift testified for the state and said that the petitioner told
him that he was going to “roll a faggot.” Swift stated that the petitioner admitted to
shooting the victim five times in the head and taking his money. Swift said that he had
been asleep at the rest area. The two men drove the victim’s car to Indiana, where they
separated.
The petitioner was arrested in Indiana and gave several statements. First,
he denied riding from Florida with Swift and denied knowing anything about the killing.
In his second statement, he said that he had been asleep and that Swift admitted to
killing the victim. In his final statement, the petitioner admitted to killing the victim. He
said that the victim tried to get him drunk and sexually assaulted him in the car. He said
that they struggled, and he pulled out a gun. The petitioner said that he pulled the
trigger accidentally, and it kept discharging. He said that Swift then decided to take the
victim’s car.
POST-CONVICTION HEARING
3 At the evidentiary hearing, the petitioner testified that he wanted to testify
at trial, but his attorneys told him that he would incriminate himself and “mess
everything up.” He said that he followed their advice, but he believed it to be wrong.
Although he admitted that he killed the victim, he claimed that his testimony about the
victim getting him drunk and making homosexual advances would have helped his
case. He said that he had been staggering around that night and that Swift’s testimony
at trial indicated that the petitioner was drunk. He said he told his attorneys that he and
the victim had drunk one-half gallon of vodka. To explain the five shots, the petitioner
stated that the gun was an automatic weapon.
The petitioner testified that there were three witnesses that should have
been called in his defense because they would have shown that Swift was not as
innocent as he claimed. He said that while he and Swift were in jail, the witnesses
heard Swift say that he made a deal with the state to testify against the petitioner. He
said Swift denied the existence of such a deal in his testimony at trial.
One of the petitioner’s trial attorneys testified about representing the
petitioner. He said that he and his co-counsel advised the petitioner not to testify
because of his three different statements and their belief that the prosecutors would
“destroy” him on cross-examination. He said that the petitioner was not articulate. The
attorney also questioned how well the petitioner’s version of the facts would stand
against questioning by the state.
The petitioner’s trial attorney testified that the petitioner changed his story
during the case. He said that the petitioner’s purported witnesses claimed to have
evidence indicating that Swift was the perpetrator, however, the petitioner admitted to
his attorneys that he killed the victim. The attorney acknowledged that the petitioner
was the only witness to the actual killing, but he said he still did not think that the
4 petitioner should have testified. The attorney stressed that although they advised the
petitioner not to testify, the petitioner could have testified if he had so desired.
The petitioner’s trial attorney said that he took statements from the three
witnesses that the petitioner wanted to call and obtained a continuance because he
could not locate one of the witnesses. However, he said he ultimately questioned using
the witnesses because their testimony was suspect because it pointed to Swift as the
perpetrator.
The petitioner’s trial attorney could not recall being told that one-half
gallon of vodka had been consumed, nor did he recall the petitioner emphasizing his
intoxication. He was aware of evidence that the petitioner had been drinking, but he
stated that he did not think that intoxication was the “lynchpin” of the case. However,
he said he thought that he and his co-counsel did request an instruction on voluntary
intoxication.
An assistant district attorney testified that Swift did not make a deal to
receive a set period of jail time. He said that Swift was convicted upon his pleas of
accessory after the fact of first degree murder and Class D felony theft, and he received
an effective sentence of two years.
The post-conviction court made detailed findings of fact and conclusions
of law. In sum, it found no constitutional errors in the jury instructions and concluded
that the petitioner received quality representation from his attorneys.
I. INSTRUCTIONS
5 Preliminarily, we note that the state chose in its brief not to address the
merits of the petitioner’s complaints about instructions, electing instead to rely upon
waiver and the fact that the post-conviction record on appeal does not include the
instructions from the trial about which the petitioner complains. None of the record of
the convicting case was made a part of the record on appeal. Although the state’s
answer to the petition in the trial court asserts waiver, the state made no such assertion
at the evidentiary hearing, and the issue was never addressed at the hearing or in the
trial court’s memorandum order. Under such a record, we presume that the state did
not pursue waiver in the trial court. Also, we may take judicial notice of the record in the
direct appeal. See State ex rel. Wilkerson v. Bomar, 213 Tenn. 499, 505, 376 S.W.2d
451, 453 (Tenn. 1964). The record contains the jury instructions given by the trial court.
The petitioner had the obligation to ensure that the record in this post-
conviction appeal contained all trial court events that are relevant to the issues raised.
See T.R.A.P. 24. In a post-conviction case, this often means including substantial
portions of the record from the original case, whether by exhibit or by consolidation of
the appellate record existing in the convicting case. In any event, the state should
address the merits of the issues raised on appeal even if it believes that a procedural
default has occurred. Under the foregoing circumstances, we will review the petitioner’s
issues on appeal.
(A) INTOXICATION
The petitioner contends that the trial court’s failure to instruct the jury on
voluntary intoxication violated his due process rights because it omitted from the jury’s
consideration evidence material to his defense. He argues that voluntary intoxication is
a defense to first degree murder because it could have prevented the petitioner from
forming a premeditated and deliberate design to kill. See State v. Bullington, 532
S.W.2d 556, 560-61 (Tenn. 1976). The original record reflects Swift’s testimony that he
6 believed that the petitioner had a lot to drink because the petitioner smelled of alcohol
and was staggering. In his statement to the police, the petitioner said only that the
victim tried to get him drunk. The statement also notes that there was a large bottle of
vodka in the trunk of the victim’s car.
The post-conviction court found that no request for an instruction was
made and that none of the evidence in the case suggested that the petitioner might
have been intoxicated. The court also noted that the petitioner was convicted of felony
murder, not premeditated and deliberate murder.
We view due process to be implicated by the failure to instruct a jury
regarding fundamental defenses fairly raised by the evidence. See, e.g., Connecticut v.
Johnson, 460 U.S. 73, 103 S. Ct. 969 (1983). Also, we believe that Swift’s testimony
and the petitioner’s statement fairly raise the issue of the petitioner’s mental state.
However, the fact that the petitioner was convicted of felony murder dispels the
concerns raised by the petitioner. He was not convicted of premeditated and deliberate
murder, which includes the mental state that is the cornerstone of the petitioner’s
argument. In light of this fact, we conclude that the petitioner has failed to show how
his due process rights were violated by the lack of an instruction on voluntary
(B) SEQUENTIAL INSTRUCTION
The petitioner contends that the trial court erred by instructing the jury to
consider premeditated and deliberate murder and lesser included offenses only after
determining that the petitioner was not guilty of felony murder. He argues that this
instruction precluded the jury from considering his claim of self-defense. This court has
twice rejected this argument. In State v. Rutherford, 876 S.W.2d 118, 119-20 (Tenn.
Crim. App. 1993), this court determined that a sequential jury charge did not prevent the
7 jury from fulfilling its duty to determine the degree of homicide. This court reached the
same conclusion in State v. Raines, 882 S.W.2d 376, 381-82 (Tenn. Crim. App. 1994).
We view these cases to be controlling.
(C) FIRST DEGREE MURDER
The petitioner contends that the trial court’s instruction on first degree
murder violated his right to due process because it directed a finding of malice, an
essential element of first degree murder. The trial court instructed the jury as follows:
Malice is an essential element of this offense, and it may be either express or implied . . . . Express malice is actual malice against the party slain and exists where a person actually contemplates the injury or wrong he inflicts. Implied malice is malice not against the party slain, but malice in general, or that condition of mind which indicates a wicked, depraved, and malignant spirit and heart, regardless of social duty, and fatally bent on mischief. Implied malice may be found to exist where the wrongdoer did not intend to slay the person killed, but death resulted from a consciously unlawful act, done intentionally and with knowledge on the wrongdoer’s part that the act was directly perilous to human life. In this event, there is implied such a high degree of consciousness and willful recklessness as to amount to that malignity of heart constituting malice.
A few sentences later, the trial court stated, “You’re reminded that the State always has
the burden of proving every element of the crime charged beyond a reasonable doubt.”
The petitioner contends that in the last sentence of the instruction, the trial
court essentially directed a finding of malice. He argues that when the trial court told
the jury that “in this event there is . . . malice,” it was saying that in this particular case
there is malice. We disagree. A fair reading of the instruction shows that the trial court,
in explaining implied malice, said that in the event that death results from a wrongdoer’s
conscious unlawful act, done intentionally and with knowledge that the act was perilous
to human life, malice can be implied even if the wrongdoer did not have the intent to kill
the victim. Thus, the last sentence simply relates to the previous sentence. In no way
do we read the last sentence to be a finding by the trial court that there is malice in the
8 present case, nor do we believe that the jury would have so concluded, particularly in
light of the fact that the trial court repeated that the state always carried the burden of
proof beyond a reasonable doubt. This issue is without merit.
(D) REASONABLE DOUBT
The petitioner contends that the trial court’s instruction on reasonable
doubt lowered the standard of proof for the state. He argues that the trial court’s use of
the phrase “let the mind rest easy” combined with “moral certainty” resulted in a burden
of proof lower than “beyond a reasonable doubt.” The trial court’s instruction to the jury
with respect to the burden of proof was as follows:
Now reasonable doubt is that doubt engendered by an investigation of all of the proof in the case and an inability after such an investigation to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a captious, or a possible, or an imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense. The state must prove beyond a reasonable doubt all of the elements of the crimes charged . . ..
This court has previously determined that reasonable doubt instructions
nearly identical to the one given in the present case were proper. See State v. Sexton,
917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364,
365 (Tenn. Crim. App. 1994). This issue is without merit.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner claims that his counsel was ineffective for (1) refusing to
allow the petitioner to testify, (2) failing to secure the testimony of a witness, (3) failing
to develop a record to support the petitioner’s allegation that all jurors who read a
newspaper article the day before trial should have been stricken for cause, and (4)
failing to object to the erroneous jury instructions. The state contends that the petitioner
received the effective assistance of counsel.
9 Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is on the petitioner to show (1) that counsel’s performance
was deficient and (2) that the deficiency was prejudicial in terms of rendering a
reasonable probability that the result of the trial was unreliable or the proceedings
fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44
(1993). The Strickland standard has been applied to the right to counsel under Article I,
Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n. 2
(Tenn. 1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. The court stated that the range of competence was to be measured by the
duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
We also note that the approach to the issue of ineffective assistance of
counsel does not have to start with an analysis of an attorney’s conduct. If prejudice is
not shown, we need not seek to determine the validity of the allegations about deficient
performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
(A) PETITIONER’S RIGHT TO TESTIFY
10 The petitioner contends that his trial attorneys were ineffective because
they refused to allow him to testify, thus precluding a successful claim of self-defense.
At the post-conviction hearing, the following colloquy occurred between the court and
the petitioner:
COURT: They didn’t. They didn’t disallow you from testifying. You just got through admitting--
PETITIONER: Well, right, well, that’s what I mean.
COURT: -- that you were the one that made the decision.
PETITIONER: Because of--
COURT: They didn’t tell you, “You are not going to testify,” did they?
PETITIONER: No, they didn’t, but they convinced me that it would be against my best interest to testify.
This colloquy comports with the trial attorney’s testimony at the post-conviction hearing
that although he and his co-counsel told the petitioner that it would not be wise for him
to testify, they did not prevent him from testifying. Because there is no evidence in the
record that the petitioner was prohibited from testifying, this issue is without merit.
(B) MISSING WITNESS
The petitioner contends that his trial attorneys were ineffective because
they failed to secure the testimony of a witness who would have provided testimony that
contradicted that of Clifton Swift. The petitioner does not specify how he was
prejudiced, nor does he provide specific information about what the missing witness
would have said, other than that the witness generally gave information that could have
helped the defense by contradicting Swift’s trial testimony.
First, we conclude that the petitioner has failed to show how his attorneys’
performance was deficient. The petitioner admitted at the post-conviction hearing that
the missing witness had testified at the preliminary hearing but could not be located for
trial. He said that he thought his attorneys should have tried to obtain a continuance or
11 a stipulation from the state regarding the substance of the witness’ testimony. The
record reflects that the trial court did grant one continuance in order for the petitioner’s
attorneys to locate the witness, but the witness could not be found. The record reflects
that the petitioner’s attorneys tried to get the state to stipulate to the testimony, but the
state refused. The petitioner offers no suggestions as to what more his attorneys could
have done. Furthermore, after a review of the transcript of a conversation between the
missing witness and the petitioner’s attorney at the jail, we conclude that the petitioner
has failed to show that he was prejudiced.
(C) RECORD OF VOIR DIRE
The petitioner contends that his trial attorneys were ineffective for failing
to preserve the record with respect to his claim that jurors were exposed to prejudicial
pretrial publicity. He argues that a newspaper article published the day before his trial,
containing incorrect and misleading information, was reason to strike for cause the
jurors who had read the article. He claims that his attorneys failed to preserve the
record on this issue because they failed to submit an accurate accounting of their
peremptory challenges and failed to specifically request that any juror be removed from
the panel.
Before his conviction will be overturned on appeal, the petitioner must
show that the jurors were biased or prejudiced against him. State v. Melson, 638
S.W.2d 342, 360-61 (Tenn. 1992). Mere exposure to news accounts of the incident
does not, standing alone, establish bias or prejudice. Prospective jurors can have
knowledge of the facts surrounding the crime and still be qualified to sit on the jury.
State v. Bates, 804 S.W.2d 868, 877 (Tenn. 1991). The test is “whether the jurors who
actually sat and rendered verdicts were prejudiced by the pretrial publicity.” State v.
Kyger, 787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989).
12 We do not believe that the petitioner has carried his burden with respect
to this issue. Although this court noted on direct appeal that review of the issue was
made difficult by the attorneys’ failure to cite to the record and failure to indicate the use
of peremptory challenges, this court nevertheless held that the issue was without merit.
Certainly, the better practice would have been to include on the record the use of
peremptory challenges. Nevertheless, the petitioner has not shown prejudice. At the
post-conviction hearing, the trial court noted that the venire was questioned about the
article and that everyone who read the article stated under oath that they could set
aside the information and decide the case based upon the evidence presented at trial.
Thus, the petitioner has failed to show that the jurors who were empaneled were biased
or prejudiced against him.
(D) INSTRUCTIONS
Finally, the petitioner contends that his trial attorneys were ineffective
because they failed to challenge the jury instructions with respect to malice and
reasonable doubt. He also argues that his attorneys were ineffective for failing to
advise the jury that his codefendant was an accomplice as a matter of law.
With respect to the petitioner’s contention that his trial attorneys were
ineffective for failing to challenge the malice and reasonable doubt jury instructions,
having concluded that the instructions were proper, we hold that the petitioner has
failed to establish ineffectiveness. As for his argument about an accomplice, the
petitioner indicates in his brief that he relies on the argument and authorities advanced
earlier in the brief. However, nowhere in the brief is there any argument or citation to
authority that would support his contention that his trial attorneys were ineffective for
failing to tell the jury that, as a matter of law, Swift was an accomplice, other than citing
authority that notes that an accomplice instruction must be requested.
13 In any event, we note that the trial court instructed the jury about
accomplices and their significance and left it to the jury to determine if Swift was an
accomplice. Swift’s testimony at the trial, as well as the petitioner’s final statement to
the police, did not present Swift as an accomplice to the petitioner’s murder of the
victim. Moreover, the petitioner’s statement to the police would sufficiently corroborate
Swift’s testimony. We do not believe that the petitioner has shown prejudice in this
matter.
In consideration of the foregoing and the record as a whole, we conclude
that the trial court properly denied the petition for post-conviction relief.
________________________________ Joseph M. Tipton, Judge
CONCUR:
___________________________ John H. Peay, Judge
___________________________ James Curwood W itt, Jr., Judge