Harris v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 23, 1998
• Docket: 03C01-9611-CR-00410
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1997 SESSION April 23, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk RICKY HARRIS, * C.C.A. # 03C01-9611-CR-00410

Appellant, * CARTER COUNTY

VS. * Hon. R. Jerry Beck, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant: For Appellee:

Laura Rule Hendricks John Knox Walkup 606 W. Main Street Attorney General & Reporter Suite 350 P.O. Box 84 Timothy F. Behan Knoxville, TN 37901-0084 Assistant Attorney General (on appeal only) 450 James Robertson Parkway Nashville, TN 37243-0493 Margo Lamb Jack Carpenter Ken Baldwin Main Street Courthouse Assistant District Attorney General Elizabethton, TN 37643 900 East Elk Avenue (at post-conviction hearing) Elizabethton, TN 37643

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE OPINION

The petitioner, Ricky Harris, was convicted of first degree murder and

received a life sentence. This court affirmed the conviction and the supreme court

denied review. State v. Ricky Jerome Harris, No. 85 (Tenn. Crim. App., at Knoxville,

Nov. 8, 1990), app. denied, (Tenn., Feb. 4, 1991). In 1992, the petitioner filed this

petition for post-conviction relief. In 1996, after several evidentiary hearings, the trial

court denied relief.

In this appeal of right, the petitioner presents the following issues for

review:

(I) whether the post-conviction court erred by ruling that any failure on the part of the state to provide exculpatory evidence to the petitioner in advance of trial did not warrant setting aside the conviction; and

(II) whether the post-conviction court erred by finding that the petitioner received the effective assistance of counsel.

After a careful review of all of the evidence, we affirm the judgment of the trial court.

A summary of the convicting evidence, as taken from our opinion on

direct appeal, is helpful. At about 7:50 A.M. on September 8, 1987, the petitioner's

former wife, Laverne Gouge Harris, and her young daughter, Laura Harris, left the

residence they shared with the victim, Dolly Gouge. The victim's mother, Vena

Odom, lived in an apartment beside Ms. Gouge. Between 8:00 and 8:30 A.M., the

victim's sister, Helen Hopson, telephoned three times to check on their mother.

When there was no answer, Ms. Hopson and her husband drove to the residence.

Ms. Gouge was not present. Ms. Hopson smelled an odor which she described as

reminding her of a hospital.

At approximately 9:45 A.M., Ms. Hopson notified Ms. Harris that the

2 victim was missing. Ms. Harris drove to the residence and also noticed a "hospital"

odor near the door. The petitioner arrived shortly thereafter.

Police officers, who were called to the scene, found the victim's

glasses near the edge of the porch and her lower denture in the trampled flower

bed. A hair roller and a blue woman's shoe were also found. When questioned, the

petitioner told officers that he had been to the Gouge residence at 8:00 A.M. to get

some personal belongings. When she did not answer the door, he left. He claimed

that he drove away, thought about returning again, but then drove away without

seeing the victim.

Three and one-half months later, parts of a skeleton were found near a

cemetery in the adjoining Washington County. A robe was found matching that

worn by the victim on the date of her disappearance. The upper denture and hair

rollers like those worn by the victim were at the scene. A blue shoe matching that

found in the flower bed was also recovered. The body had apparently been

dismembered by animals. Neither the time of death nor the cause of death could be

determined.

A witness testified that the petitioner had been in a parked car

watching the victim's house through binoculars sometime between 7:30 and 7:55

A.M. on the day of her disappearance. Between 8:15 and 9:00 A.M., a next-door

neighbor, Joyce Hinkle, saw a light-colored automobile with Sherwood Chevrolet

stickers on the window parked in front of the victim's residence. Ms. Hinkle heard

the victim exclaim with surprise and, soon thereafter, she saw the petitioner walking

quickly while clutching something in his hands. "He went around to the front

entrance of the victim's home, then came back around and seconds later he went

3 back around the house completely out of her sight." Harris, slip op. at 6. She

described the petitioner as wearing gloves and holding a bottle.

As the petitioner made a second trip around the victim's house, Ms.

Hinkle passed by and they spoke. She saw the petitioner drive away in the direction

of Elizabethton, but minutes later saw the same car traveling on a different route

toward Roan Mountain. When the petitioner returned to the victim's driveway, he

was not wearing gloves and had changed clothes. He explained to Ms. Hinkle that

he was getting some albums from the residence.

Officer William Foster also observed the petitioner on the day of the

victim's disappearance. He recalled that the petitioner went to his motel room and

then to his place of employment at Sherwood Chevrolet, before driving to his

attorney's office and then to a car wash.

Employees at Sherwood Chevrolet recalled that on the date of the

victim's disappearance, the petitioner did not arrive at work on time. One witness

described the petitioner as flushed, excited, and sweating when he did arrive.

Another employee noticed very deep scratches on his forearms.

Charles Carr, who lived near where the body was found, recalled

seeing a new gray car with dealer's tags near his residence around 9:00 A.M. on the

date of the victim's disappearance. He had seen the car twice previously in the

months prior to the incident.

James Hodge also lived near the cemetery where the body was

discovered. He saw a gray car traveling the area between 8:30 and 9:00 A.M. on

4 the date the victim disappeared. About ten minutes later, he saw the same car

again. He described it as a new gray Chevrolet with red pinstripes, dealer's tags,

and new car stickers. He identified the petitioner as the driver. See Harris, slip op.

at 2-14.

I

The petitioner initially contends that the state failed to disclose

material, exculpatory information in violation of Brady v. Maryland, 373 U.S. 83

(1963). He alleges five separate Brady violations:

(a) suppression of evidence that three eyewitnesses had seen the victim alive at a time after the prosecution believed she had been murdered;

(b) suppression of evidence that there was a question as to whether the body found in the cemetery was the victim's;

(c) suppression of evidence that a witness could refute Foster's testimony that the petitioner vacuumed the trunk of his car the day the victim disappeared;

(d) suppression of evidence that Foster was a convicted felon; and

(e) suppression of evidence that someone else had confessed to murdering the victim.

In the landmark case of Brady v. Maryland, the United States Supreme

Court ruled that the prosecutor has a duty to furnish exculpatory evidence to the

defendant. Exculpatory evidence may pertain to the guilt or innocence of the

accused and/or the punishment which may be imposed if the accused is convicted

of the crime. State v. Marshall, 845 S.W.2d 228 (Tenn. Crim. App. 1992).

Any "suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

5 guilt or punishment, irrespective of the good faith or bad faith of the prosecution."

Brady, 373 U.S. at 87. This duty to disclose extends to all favorable information

irrespective of whether the evidence is admissible. Branch v. State, 469 S.W.2d

533 (Tenn. Crim. App. 1969). And, while Brady does not require the state to

investigate for the defendant, it does burden the prosecution with the responsibility

of disclosing statements of witnesses favorable to the defense. State v. Reynolds,

671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The duty does not extend to

information that the defense already possesses or is able to obtain or to information

not in the possession or control of the prosecution. Banks v. State, 556 S.W.2d 88,

90 (Tenn. Crim. App. 1977).

Before this court may find a due process violation under Brady, the

following elements must be established:

(1) the defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the State is bound to release the information whether requested or not);

(2) the State must have suppressed the information;

(3) the information must have been favorable to the accused; and

(4) the information must have been material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearing).

In Edgin, our supreme court adopted the following standard for

materiality:

[T]here is constitutional error "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." ...

[The] touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant

6 would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."

Edgin, 902 S.W.2d at 390 (quoting Kyles v. Whitley, 115 S. Ct. 1555, 1566 (1995)).

(a)

The petitioner's first Brady claim concerns a possible identification of

the victim at the bank hours after the state alleged the petitioner had killed her. The

petitioner testified that when he filed a request under the Freedom of Information

Act, he received two slips of paper indicating the victim may have been seen about

noon on September 8, 1987, at the Citizen's Bank.

Donna Vaughn testified at the evidentiary hearing that on September

8, 1987, she was with her mother, Mary McQueen, and her aunt, Brenda Crowe, at

the drive-through window of Citizen's Bank on Broad Street, at 11:00 or 11:30 A.M.,

when she saw a small, elderly lady sitting on the passenger's side in another car.

"She was kind of trying to get our attention like something was wrong or she wasn't

right, one of the other." The woman had short, dark brown hair that was "rolled real

neat." There were no rollers in her hair and she was not slouchy in appearance.

Although Ms. Vaughn could see the woman only from her shoulder up, she

determined the woman was a small lady around seventy years of age. Ms. Vaughn

observed the woman for five to ten minutes and described her as "just moving

around like she was trying to get our attention and rolling her eyes."

Ms. Vaughn "constantly" watched the older woman and asserted that

she acted in a strange manner. Ms. Vaughn described her as petite or "slim faced."

7 The woman was not wearing a robe. Her hair was lighter than what she saw in

photographs of the victim. Further, the woman at the bank appeared smaller than

the photographs of the victim indicated. After finishing business at the bank, Ms.

Vaughn had lunch with her relatives and then returned home at approximately 12:00

noon. When they turned on the television set, she saw a picture of a woman who

had been described as missing. Ms. Vaughn immediately believed her to be the

woman she had seen at the bank. She recalled that "we all looked at each other

and said -- that looks like the lady that we had saw." Ms. Vaughn remembered that

her mother or aunt called the sheriff's department, but no one contacted her about

the matter.

Mary McQueen, who was present at the bank with her daughter,

testified that a bank book, which was entered into evidence, confirmed that a

deposit was made on September 8, 1987. Ms. McQueen recalled seeing a woman

with dark, short, curly hair sitting in the passenger seat of another vehicle. While

she did not remember if the woman wore glasses, she remembered that she was a

very neat person and had a medium rather than petite build. If the woman wore

dentures, they would have been in her mouth. She did not have rollers in her hair

and Ms. McQueen did not recall if the woman wore a robe.

Ms. McQueen stated that when the vehicle moved forward in the drive-

through lane, the woman passenger turned around and tried to get her attention.

She recalled thinking "the little lady wasn't right" and acknowledged it was possible

this incident at the bank could have occurred at a time different than the date of the

victim's disappearance.

Ms. McQueen confirmed that when she returned home and turned on

8 the television set, she saw a woman on television who appeared to be the same

person as the one at the bank. Ms. McQueen stated, "If it wasn't her, she [had] a

twin."

Brenda Crowe, Ms. Vaughn's aunt, confirmed the incident. She also

described the woman as having short, curly hair with a very neat appearance and no

rollers in her hair. Ms. Crowe did not remember if the woman wore glasses but did

recall that she may have worn a cardigan sweater. She remembered the woman to

be small or petite with hair a lighter color than that of the victim.

Former Supreme Court Justice Penny White, who was defense

counsel at trial, testified that the district attorney did not have an open file policy at

that time. She recalled filing a Rule 16 motion for discovery which included a

request for any exculpatory information. She stated that even after discovery was

ordered, the district attorney refused to allow her personal access to any of the

records. Attorney White viewed the evidence of the three woman as clearly

exculpatory: "If the jury believed the witnesses, then Harris could not have done the

killing." She confirmed she did not receive any information in advance of trial

indicating anyone had seen the victim.

James Bowman, co-counsel for the defendant, testified that even if the

women did not see the victim on the date of her disappearance, he would have still

used their testimony.

Laverne Gouge, the victim's daughter, lived with her mother on the day

of the disappearance. She testified that her mother owned only one pair of glasses,

was five feet six or six and one-half inches tall, and weighed one-hundred fifty to

9 one-hundred sixty pounds. Ms. Gouge recalled that the police arrived the day of the

disappearance around 11:00 A.M. No television cameras were present. She did

not give the media a photo of her mother, although at some point, she did give the

police a photograph.

Officer Shannon Morton testified that when he arrived at the victim's

house at about 11:30 A.M., other officers were there. He did not arrange a news

broadcast for the noon day news on September 8. "This was done late in the

afternoon on the day of the 8th and ... the first ... news reports were broadcast on

the 11:00 o'clock news." Officer Morton did not know of any press releases prior to

the noon hour on September 8. He claimed that even if he had a photograph of the

victim at 11:30 A.M., it would have been impossible to have it ready for a noon hour

television broadcast.

Officer Morton testified that medical records showed the victim

weighed one-hundred forty-four pounds and was five feet six inches tall. The

victim's sister described her as five-feet four inches, weighing one-hundred forty

pounds. He remembered that at the preliminary hearing, the victim's daughter

stated that her mother had more than one pair of glasses and admitted she was

uncertain whether her mother was wearing rollers in her hair on the morning of her

disappearance. Officer Morton remembered the incident at the bank was the only

reported possible sighting of the victim.

David Crockett, the District Attorney, testified that the report of the

incident at the bank was "clearly a case of mistaken identity." He claimed it was an

"obviously inaccurate piece of evidence that had no bearing on the case."

10 William Crumley, Sheriff of Carter County on the date the victim was

reported missing, testified that news releases were his responsibility. He claimed

that he did not authorize any news releases prior to noon. Moreover, he asserted "it

would have been virtually impossible because from the time of the original call to

noon was a relatively short period of time." He did not recall any media being

present and withheld his decision to contact news media until late that afternoon.

He remembered that the first broadcast that the victim was missing was on the

11:00 P.M. news.

The trial court made the following findings of fact and law:

The information, if it could withstand investigation and critical evaluation, would have been exculpatory. ... The information received by the Sheriff's Department was not turned over to the District Attorney and, as a result, the information was not turned over to defense counsel. *** Under applicable Brady/Kyles standards, the state's theory that the petitioner is not entitled to a new trial seems compelling.

Physical Evidence The victim, Dolly Gouge, could only be considered a large woman. The testimony of the witnesses at the bank on September 8, 1987, indicates that the woman observed was a small person. The physical evidence located at the Dolly Gouge home indicates a struggle as evidenced by the destruction of the flower bed. The testimony of the three witnesses indicates that the person they observed was neatly dressed with her hair in place. The area of the yard near Dolly Gouge's home on September 8, 1987, revealed a shoe, (one) dental plate and hair curler with hair in it, and a pair of glasses belong to Dolly Gouge (victim). ... When Mrs. Gouge's body was located [12/23/87] near the Carr Cemetery some months after her disappearance, located nearby the body was her upper denture, hair rollers in her hair, and the shoe matching the one in the flower bed. ... When Laverne Gouge Harris Craig [victim's daughter] left the home on the morning of September 8, 1987, Mrs. Gouge had on a colorful flowered robe, and this same robe was found at the Carr Cemetery . ...

11 One of the three witnesses at the bank described the person as a little old lady going to church--another remembers glasses. Further, a reading of the record and Scott's opinion indicates overwhelming evidence of the guilt of the petitioner Harris. Also, although not as clear as the above, serious doubt exists as to whether the three witnesses could have observed a photo of Dolly Gouge on the television at 12:00 noon on September 8, 1987. ...

Conclusions of Law and Fact This Court is convinced beyond a reasonable doubt: (A) That, under the circumstances of the case and all the proof offered, this Court can see no probability of a different result had the information been revealed concerning the three witnesses; (B) That the absence of the three witnesses ... did not result in an unfair trial; (C) That the failure of the police to turn over the evidence did not result in a verdict unworthy of confidence; (D) This Court is convinced beyond a reasonable doubt that the evidence ... was not reliable when viewed under the full context of the other physical or oral proof offered at trial; This evidence is so unreliable that it falls within the category of worthless.

Under the standard set forth in Edgin, we initially conclude the

evidence was requested and that the state failed to reveal it. The information was

apparently contained in a police investigative file but was never turned over to the

District Attorney's office. The law, however, provides that "'suppression by police

will be imputed to the prosecution ....'" State v. Davis, 823 S.W.2d 217, 219 (Tenn.

Crim. App. 1991) (quoting Cason v. State, 503 S.W.2d 206, 208 (Tenn. Crim. App.

1973)). Thus, the second Edgin factor has been satisfied. Finally, the evidence

was exculpatory. If the jury believed that the witnesses at issue did see the victim at

the bank at noon on September 8, the theory of the state, based entirely upon

circumstantial evidence, would have been discarded. Furthermore, that the

petitioner was talking to police at the same time the victim was seen at the bank

12 would have been clearly exculpatory.

The remaining question is whether the evidence is material. Evidence

is not material unless it creates "'reasonable probability' of a different result." Edgin,

902 S.W.2d at 390 (quoting Kyles v. Whitley, 115 S. Ct. at 1566). That is, it is not

material unless it "'undermined confidence in the outcome of the trial.'" Id. We

conclude the evidence is not material and will attempt to explain why.

When shown pictures of the victim as she appeared at the time of her

death, none of the three women were able to say that the victim was, in fact, the

woman they saw at the bank. Ms. Vaughn thought the woman they saw at the bank

had lighter-colored hair and appeared smaller than the pictures of the victim

indicated. When Ms. McQueen was asked if she could determine whether the

woman at the bank looked like the victim, she responded, "I don't know. All I know

is she [the lady at the bank] just looked like the lady that they showed on the TV that

day, [that is] all I can really [say]." Ms. Crowe testified that the woman she saw at

the bank was smaller than the victim and that the hair color was lighter.

The descriptions given by the woman at the bank contradict the

undisputed evidence at trial relating to the appearance of the victim. The evidence

established that the victim, when abducted, had rollers in her hair, was without part

of her dentures, and was wearing a brightly-colored robe. None of the three women

corroborated any of these details. When the body was discovered, authorities found

hair rollers, the robe, and the single shoe that matched the one found in the flower

bed. All of that corresponded with the trial testimony.

The state proved at the evidentiary hearing that the victim's picture

13 could not have been on the news at noon on the date of her disappearance.

Authorities arrived at the scene at approximately 11:00 A.M. on September 8.

Sheriff Crumley testified that he did not authorize a news release before noon on the

date at issue and that it would have "been virtually impossible because from the

time of the original call to noon was a relatively short period of time" in which to

arrange the news for television.

At the conclusion of the hearing, the trial court observed that it was

unlikely that the women, who were uncertain of the date of the event at the bank,

had seen the victim's photograph on television at noon on September 8. That the

women were uncertain about the date served to lessen the value of their testimony.

That is especially so in light of the fact that none of the women could positively

identify the female individual they saw at the bank as the victim.

Under the circumstances, any evidence favorable to the defense

would have been somewhat helpful at trial. Yet the evidence offered by the state,

while entirely circumstantial, was nonetheless overwhelming. All of this leads us to

the conclusion that the testimony of the three women was not sufficiently material to

warrant a new trial. Had they been more positive in their identification of the victim

or if their description had more closely resembled the victim as she apparently

appeared at the time of her disappearance, our conclusion may have been different.

To further explain our rationale, it may be helpful to examine cases

where courts have found a Brady violation requiring reversal. In State v. Marshall,

845 S.W.2d 228 (Tenn. Crim. App. 1992), the defendant was convicted of first

degree murder and received a life sentence. His attorneys discovered that the state

had suppressed several statements of witnesses indicating that a Robert Thomas

14 "Astro" Coats had actually committed the crime. For example, one witness indicated

that he had heard Coats state that he had killed the victim and then showed him the

murder weapon. Coats' girlfriend, who also claimed to have overheard Coats

confess to the crime, reported that Coats had directed her to serve as his alibi

witness. Other witnesses heard Coats discuss his participation in the crime. This

court found that had the evidence been disclosed, there was a "reasonable

probability that the results of the trial would have been different." Id. at 234. See

also State v. Spurlock, 874 S.W.2d 602 (Tenn. Crim. App. 1993).

Another instructive case is the United States Supreme Court's opinion

in Kyles v. Whitley, 115 S. Ct. 1555 (1995). In that capital case, the primary issue

was one of identity. Id. at 1569. The state, which relied primarily on the testimony

of several eyewitnesses who identified Kyles as the killer, withheld from the defense

the pretrial statements of two of the witnesses. The Supreme Court ruled that if the

defense had been allowed to use those statements, "the value of ... those [two]

witnesses would have been substantially reduced or destroyed." Id. at 1569. The

state also suppressed pretrial statements of an informant who was nicknamed

"Beanie." Many of Beanie's statements to the authorities indicated that he was the

killer or that he had planted evidence tending to incriminate Kyles. The Court found

that this information, had it been disclosed, would have substantially weakened the

state's case and thus confidence in the outcome of that trial could not be

maintained. Id. at 1575.

In our view, the evidence withheld in this case is not nearly as

persuasive as in those reported cases in which new trials have been ordered. The

quality of the suppressed testimony is simply insufficient to undermine our

confidence in the results of the trial. In short, the evidence does not preponderate

15 against the determination that a new trial is not warranted. See Edgin, 902 S.W.2d

at 390-91.

(b)

The petitioner next argues that a Brady violation occurred when the

state withheld evidence that there was some question as to whether the body found

in the cemetery was that of the victim. According to a T.B.I. memorandum,1 the first

medical person summoned to the cemetery originally believed that the skeletal

remains had the appearance of being embalmed. He originally thought the skull

appeared to be that of a young woman.

While the trial court observed that this evidence might qualify as

"arguably a cross-examination point," it ruled that the preliminary thoughts of the

physician would not have benefitted the defense. We agree with that assessment.

Again, the first three requirements established by the ruling in Edgin

have been shown: (1) the defendant requested the information; (2) the state failed

to provide it; and (3) it could have been exculpatory because it tends to suggest the

body was not that of Dolly Gouge. In our view, however, the evidence is not

material. The physician testified that additional testing demonstrated that the body

had not been embalmed. A closer examination of the skull indicated that the body

was that of a woman at least in her fifties. That he may have, on first impression,

speculated that the body, found near a cemetery, had been embalmed or was that

of a younger person, does not cast any real doubt on the substance of his

testimony. That evidence would have been only marginally relevant or useful in

cross-examining Dr. McCormick. Kyles v. Whitley, 115 S. Ct. at 1571.

1 The re cord is un develop ed as to h ow the p etitioner acq uired pos sessio n of this do cum ent.

16 (c)

The petitioner next contends the state committed a Brady violation by

withholding from the defense evidence that a witness could refute state witness

Foster's testimony that the petitioner had vacuumed the trunk of his car on the day

the victim disappeared. At trial, Foster testified that after he was assigned to follow

the petitioner, he observed him take his car to a carwash and park near the vacuum

cleaner. While the testimony suggested the petitioner might have vacuumed his

car, Foster conceded that he could not determine whether he had actually done so.

Foster said that when he asked others who were present to confirm what the

petitioner had done, they were unable to do so.

A T.B.I. memorandum, found sometime after the trial, however,

provides as follows: "At first, Sgt. Foster thought Ricky Harris vacuumed the trunk

out. However, another individual, who was close by advised Sgt. Foster that Ricky

Harris did not vacuum the vehicle." Thus, the memorandum could have been used

to impeach Sgt. Foster's testimony that no one else saw anything about the

petitioner while at the carwash.

Nonetheless, this evidence does not meet the materiality test. W hile it

might have called into question the inference that the petitioner had cleaned the

interior of the car in an effort to destroy evidence of his crime, this is a minor point

that, from our assessment of the record, would have only marginally weakened the

state's case. Due to the strength of the other convicting evidence, our confidence in

the verdict is not affected in the least due to the state's failure to preliminarily advise

the defense on this point. Edgin, 902 S.W.2d at 391.

17 (d)

Next, the petitioner argues a Brady violation by the state's suppression

of evidence that Sgt. Foster had a felony record. During the 1960's, Foster was

apparently convicted of offenses in the state of Louisiana. He ultimately received a

pardon. This fact was not discovered by either the state or the defense until

sometime after petitioner's trial.

There is no Brady violation. The duty to disclose evidence does not

extend to information not in the possession or control of the prosecution. Banks v.

State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977). Because the parties stipulated

that the state did not have this information in its possession or control until

sometime after trial, there was no error. Id.

(e)

The petitioner's final claim based upon the ruling in Brady is that the

state suppressed evidence that someone else had confessed to the murder. After

trial, the petitioner's trial counsel received a copy of a letter that provided in part:

[District Attorney General] David Crockett How can you live with yourself the way you do people in court? I wrote you a letter before you had the trial on Ricky Harris but you must have throw[n] it away because you didn't want a hole in your plan. I told you in that letter that Ricky Harris did not do any murder. I was the one that did it. ... I wanted to let you know that me and the other two family members got by with it. You police people are so stupid. Bill

When trial counsel, after reading a copy of the letter, contacted the

District Attorney, she was informed that he had forwarded her the letter as soon as

he received it. He denied having received any correspondence before the trial.

After hearing proof on the matter, the trial court determined "that District Attorney

18 Crockett was absolutely truthful in his testimony that he received no pre-trial letter

from 'Bill.'" This factual finding is binding on this court unless the evidence

preponderates against it. Edgin, 902 S.W.2d at 389. It does not. Because the

state did not have any information about a confession before the trial, the state

cannot be held to a requirement of disclosure. Banks, S.W.2d at 90.

In Kyles v. Whitely, the Supreme Court ruled that one aspect of

materiality is that the "suppressed evidence [must] be considered collectively, not

item-by-item." 115 S. Ct. at 1567. We have reviewed the substance of each of the

items not disclosed to the defense (the possible sighting of the victim and the

relevant information contained in the T.B.I. memorandum). Our determination is

that none of the items, standing alone, qualified as material. Our conclusion is the

same after examining the collective evidence withheld by the state. In the context of

the entire record, the failure on the part of the state to disclose the evidence at issue

does not affect our confidence in the verdict. Even if the petitioner had known of

this evidence, it is our view that the outcome of the trial would not have been

different. Id. at 1566. In Edgin, the supreme court ruled that the petitioner must

show a Brady violation by a preponderance of the evidence. 902 S.W.2d at 389.

The evidence does not preponderate against the trial court's ruling that the petitioner

failed to carry this burden.

Our ruling on this issue is not designed to encourage prosecutors to

disregard their legal and ethical responsibility to disclose evidence that might be

construed as exculpatory. The United State Supreme Court has commented

extensively on the duty to disclose evidence favorable to the defense. "[A]

prosecutor anxious about tacking too close to the wind will disclose a favorable

piece of evidence. ... This is as it should be. Such disclosure will serve to justify

19 trust in the prosecutor as the 'representative ... of a sovereignty ... whose interest ...

in a criminal prosecution is not that it shall win a case but that justice be done.'"

Kyles v. Whitley, 115 S. Ct. at 1568 (citations omitted).

II

The petitioner also argues that his trial counsel was ineffective for the

following reasons:

(a) failure to object to venue when the body was found in Washington County and the petitioner was tried in Carter County;

(b) failure to request DNA testing when the remains of the victim were identified only by articles of clothing that were found near the body;

(c) failure to request special jury instructions regarding identification;

(d) failure to object to the introduction of testimony regarding a police dog's ability to smell hospital odors; and

(e) failure to object to erroneous, confusing jury instructions.

When a petitioner seeks post-conviction relief on the basis of

ineffective assistance of counsel, he must first establish that the services rendered

or the advice given was below "the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Recently, our supreme court

described the standard of review as follows:

Because a petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not address the

20 components in any particular order or even address both if the defendant makes an insufficient showing of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffective counsel, the petitioner is not entitled to the

benefit of hindsight, may not second-guess a reasonably based trial strategy, and

cannot criticize a sound, but unsuccessful, tactical decision made during the course

of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the

choices are made after adequate preparation for the case. Cooper v. State, 847

S.W.2d 521, 528 (Tenn. Crim. App. 1992). On appeal, any findings of fact made by

the trial court are conclusive and will not be disturbed unless the evidence contained

in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289

(Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence

preponderates against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978). This court may not reweigh or reevaluate the evidence or

substitute its inferences for those drawn by the post-conviction court. Questions

concerning the credibility of witnesses and weight and value to be given their

testimony are for resolution by the post-conviction court. Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990).

The petitioner's first argument is that trial counsel was ineffective for

failing to object to venue. The body was found in Washington County but he was

tried in Carter County. Counsel for the petitioner sought a change of venue based

upon the substantial amount of pretrial publicity. The request was denied. The

petitioner now argues that his trial counsel should have also alleged, as an

21 alternative ground, that the crime was not committed in Carter County.

The trial judge concluded that a motion for change of venue on that

basis "would have been to no avail" because the circumstantial evidence suggested

that substantial parts of the crime were committed in Carter County, thus

establishing proper venue. The trial court also ruled that "if one or more elements of

a crime are committed in one county and other elements in another, the offense

may be prosecuted in either county." We agree.

Article 1, Section 9 of the Tennessee Constitution provides in part that

in all criminal prosecutions, the accused has the right to a "speedy public trial, by an

impartial jury of the county in which the crime shall have been committed ...." See

Tenn. R. Crim. P. 18. The state has the burden of proof that the offense was

committed in the county of the indictment. Harvey v. State, 376 S.W.2d 497 (Tenn.

1964). Venue may be shown by a preponderance of the evidence which may be

either direct or circumstantial or both. Hopper v. State, 326 S.W.2d 448 (Tenn.

1959). Rule 18(b) provides that "[i]f one or more elements of an offense are

committed in one county and one ore more elements in another, the offense may be

prosecuted in either county." Tenn. R. Crim. P. 18; see State v. Knight, 616 S.W.2d

593 (Tenn. 1981); State v. Reed, 845 S.W.2d 234, 238 (Tenn. Crim. App. 1992).

There was, in fact, circumstantial evidence that the victim was

abducted in Carter County. There was also proof that the petitioner had monitored

the victim's home and awaited an opportunity to accost her without being detected.

These facts establish both premeditation and deliberation, critical elements for first

degree murder.

22 The petitioner also complains that his trial attorneys did not ensure an

appropriate jury instruction on venue. The trial court charged the jury as follows:

Before you can find the defendant guilty of any offense, you must find that the State has proved each and every element of the offense beyond a reasonable doubt and further that the offense occurred before the commencement of the prosecution, and it occurred in Carter County, Tennessee, by a preponderance of the evidence.

See Tenn. Pattern Jury Instruction 2.04 (2d ed. 1988).

The petitioner complains that the following instruction should have

been provided:

The burden is upon the state to prove by a preponderance of the evidence that this offense was committed in Carter County, Tennessee. Proof by a preponderance of the evidence means that the greater weight of the evidence must be in support of the state's contention. Venue of the offense lies in the county where the offense was commenced or consummated. If you find that the state has failed to prove by a preponderance of the evidence that this offense was commenced or consummated in Carter County, Tennessee, then you must return a verdict of not guilty.

See Tenn. Pattern Jury Instruction 2.05 (2d ed. 1988).

In our view, the instruction given, although brief, is an accurate

statement of the law on venue. The jury was charged that it had to find by a

preponderance of the evidence that the crime was committed in Carter County and

that, if it did not so conclude, it had to find the defendant not guilty. See Tenn.

Pattern Jury Instruction 2.04 (2d ed. 1988).

The petitioner next complains that his trial attorneys were ineffective

23 for failing to seek DNA testing to confirm the identity of the body. He argues that the

body was identified only by the articles of clothing that were found nearby.

The trial court made the following finding:

At the time of trial, DNA evidence was in its legal development stage at best, and trial counsel could not be faulted for failing to recognize that DNA might have offered some aid at trial.

*** Considering the overwhelming evidence concerning the identification of the victim, it could not be stated that DNA would have rendered any aid to the defendant's theory. Original trial counsel was not ineffective under due process standards or Sixth Amendment standards.

We agree. The petitioner was tried in 1988. In 1990, this court ruled

that "[i]f a scientific development with forensic application is not generally known to

the Tennessee courts and attorneys who are involved with the administration of

criminal justice, then a defense attorney's unknowing failure to pursue such a

development ... does not necessarily render him ineffective." State v. Overbay, 806

S.W.2d 212, 215 (Tenn. Crim. App. 1990). In Overbay, the petitioner sought to

challenge his 1987 convictions based on trial counsel's failure to seek DNA testing.

In rejecting the claim the court made the following observation:

In People v. Castro, 545 N.Y.S.2d 985, 986 (1989) the reliability and forensic application of DNA print identification was considered a "fascinating and novel issue." In 1988, it was noted to be "at the 'cutting edge' of forensic science." People v. Wesley, 533 N.Y.S.2d 643 (1988). The first reported appellate opinion dealing substantively with the issue of DNA testing appears to be Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988) which recognized that the issue was novel. 533 So. 2d at 846, n.4. .... [T]his court [has] held that if a legal issue, although in existence, was not generally known to the bench and bar when a particular case went to trial, then it could not be said that the attorney in that trial was ineffective for failing to raise the issue.

24 Overbay, 806 S.W.2d at 214-15 (parallel citations omitted).

Here the trial commenced two years before the opinion in Overbay

was released. The use of DNA testing in the criminal justice arena was not an

established practice at that time. Id. While we acknowledge the petitioner's

argument that DNA testing was available in 1988 through the FBI and was

discussed in newspaper articles and law review journals, the recognized standard

for the effective assistance of counsel does not require that the attorney "read[] all

cases and scientific journals published across this nation." Id. at 215. The test is

whether the scientific procedure at the time of the trial was "generally known to the

Tennessee courts and attorneys." Id. Clearly, DNA testing was not generally known

in Tennessee at the time of his trial. Thus trial counsel cannot be found deficient for

failing to seek testing.

Of greater importance is that the petitioner has not met the second

requirement of the ruling in Strickland. The petitioner has failed to establish

prejudice--that there is a "reasonable probability" that but for counsel's deficient

performance "the result of the proceeding would have been different." Strickland,

466 U.S. at 694. In Davis v. State, 912 S.W.2d 689, 698 (Tenn. 1995), the

petitioner argued his counsel was ineffective for failing to seek additional serological

testing. Our supreme court ruled that "since the petitioner presented no evidence of

what serological testing would have shown and of how it would have benefitted him,

he failed to demonstrate any prejudice." Id. at 698. The petitioner has offered no

proof as to what DNA testing would have shown. This court cannot speculate about

the issue; there must be a demonstration of prejudice.

25 (c)

The petitioner next argues that his counsel was ineffective for failing to

request special jury instructions regarding the identification issue. The following

instruction was provided:

Identity. The State must prove beyond a reasonable doubt the defendant's identity as the person who committed the crime.

If, after considering all of the evidence in this case, you the jury are not satisfied beyond a reasonable doubt that the defendant is this person, then you must find him not guilty.

See Tenn. Pattern Jury Instruction 37.17 (2d ed. 1988).

The petitioner contends that United States v. Telfaire, 469 F.2d 552

(D.C. Cir. 1972), is the "penultimate authority on eyewitness identification jury

instructions." In Telfaire, the federal court recognized the difficulties associated with

identification testimony and adopted a more comprehensive instruction. Id. Until

1993, Tennessee courts consistently rejected the Telfaire instruction. See State v.

Ward, 712 S.W.2d 485, 488 (Tenn. Crim. App. 1986); State v. Moore, 713 S.W.2d

670, 676 (Tenn. Crim. App. 1985); State v. Wooden, 658 S.W.2d 553, 557 (Tenn.

Crim. App. 1983). In 1993, an opinion filed in this court departed from the traditional

rule and held that "in any criminal case in which the issue of identity is raised by the

evidence and is material to the defense the detailed identification instruction first

devised in Telfaire ... must be given." State v. Dennis Lee Dyle and William

Whitfield Ellis, No. 03C01-9209-CR-00332, slip op. at 10 (Tenn. Crim. App., at

Knoxville, Nov. 16, 1993), rev'd, 899 S.W.2d 607 (Tenn. 1995). On appeal,

however, our supreme court ruled that while a more detailed instruction on

identification testimony was required, the Telfaire instruction impermissibly

commented on the evidence. Instead, the court promulgated a new identity

instruction which must be given in all cases where identity is a material issue and

26 the instruction is requested. Dyle, 899 S.W.2d at 612.

In our view, trial counsel was not ineffective for failing to request an

instruction that would have been denied. Counsel would have had no obligation to

anticipate that in 1995, almost eight years after the trial in question, the supreme

court would depart from a long line of cases holding supplemental instructions on

identity are not required. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.

App. 1994). See also Larry J. Cawthon v. State, No. 02C01-9702-CR-00064 (Tenn.

Crim. App., at Jackson, July 29, 1997) (holding counsel was not ineffective for failing

to request a special jury instruction on eyewitness identification, when the case was

tried prior to Dyle).

(d)

The petitioner next argues that his trial counsel was ineffective for

failing to object to testimony by Officer J.D. Toth that his police dog had alerted him

to hospital-like odors at the victim's residence. The transcript of the trial, however,

demonstrates that Officer Toth did not testify to that. In fact, the officer testified that

the dog "gave no indication that there was a strange odor." Harris, slip op. at 37.

Because the dog was unable to track the scent of the victim, Officer Toth concluded

that she did not walk away from the residence.

The petitioner next argues his trial counsel was ineffective for failing to

object to several of the jury instructions. First, he complains about the following

instruction on reasonable doubt:

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case, and an inability after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a

27 possible or 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 petitioner argues this instruction violated the standards set forth in

Victor v. Nebraska, 511 U.S. 1 (1994). In Victor, the United States Supreme Court

ruled that a jury might "understand [the instruction containing the phrase 'moral

certainty'] to allow conviction on proof that does not meet the beyond a reasonable

doubt standard." 511 U.S. at 13. The Court ruled, however, that a reasonable

doubt instruction that contained the phrase "moral certainty" might nonetheless

comport with constitutional guidelines if used in conjunction with other phrases that

lend content to the phrase. Id. at 15.

In State v. Nichols, 877 S.W.2d 722, 734-35 (Tenn. 1994), our

supreme court considered a challenge to a jury instruction which included the term

"moral certainty" used in conjunction with a charge that "[r]easonable doubt is that

doubt engendered by an investigation of all the proof in the case and an inability,

after such investigation, to let the mind rest easily upon the certainty of your verdict."

Id. The court concluded that the instruction properly reflected "the evidentiary

certainty required by the 'due process' clause of the federal constitution and the 'law

of the land' provision in our state constitution." Id. In our view, Nichols controls in

this instance. Thus, trial counsel cannot be found ineffective for failing to object to

the instruction. See also State v. Bush, 942 S.W.2d 489, 520-21 (Tenn. 1997)

(upholding the constitutionality of an instruction almost verbatim to the instruction

given in petitioner's case), cert. denied, 118 S. Ct. 376 (1997); contra Rickman v.

Dutton, 864 F.Supp. 686 (M.D. Tenn. 1994), aff'd, 131 F.3d 1150 (6th Cir. 1997),

cert. filed (Mar. 2, 1998).

28 The petitioner also argues counsel was ineffective for failing to object

to the following instruction on malice:

Malice is an intent to do any injury to another, a design formed in the mind to doing the mischief to another. 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. ... In this event there is implied such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice. Likewise if a deadly weapon is handled in a manner so as to make the killing a natural and probable result of such conviction of murder in the first degree, but again this inference may be rebutted by either direct or circumstantial evidence, or by both regardless of whether the same be offered by the defendant or exists in the evidence of the State. A "deadly weapon" is any weapon or instrument which from the manner in which it is used or attempted to be used is likely to produce death, or cause great bodily injury. *** You are reminded that the State always has the burden of proving every element of the crime charged, beyond a reasonable doubt. A permissible inference may or may not be drawn from an elemental fact from proof by the State of a basic fact. However, all inferences permitted to be drawn may be rebutted. An inference does not place any burden of proof of any kind upon the defendant.

In Sandstrom v. Montana, 442 U.S. 510 (1979), the United States

Supreme Court ruled that jury instructions that relieve the prosecution of the burden

of proving an essential element of the offense are unconstitutional. Here, the

petitioner argues that the instructions given at his trial impermissibly shifted the

burden of proof on the element of malice.

In State v. Bolin, 678 S.W.2d 40, 43 (Tenn. 1984), the jury was

29 instructed that "the use of a deadly weapon ... raises a presumption of malice unless

rebutted by other facts and circumstances to the contrary...." After examining the

particular instruction at issue and the full charge in its entirety, our supreme court

upheld the conviction because no "jury could have interpreted the ... instruction as

mandatory or conclusive or as shifting to the defendant the burden of persuasion on

the element of malice." Id. at 44. The court did, however, offer the following

warning:

In the wake of Sandstrom, no state court of last resort can fail to recognize that it is prudent to warn trial judges that the word "presumption" should not be used, except in instructing on the presumption of innocence. In its place juries may be instructed that a permissible inference may or may not be drawn of an elemental fact from proof by the State of a basic fact, but that such inference may be rebutted and the inference places no burden of proof of any kind upon defendant.

Id. at 44-45 (footnote omitted).

Here, the jury was not permitted to presume malice. The trial judge

charged that the inference of malice could be rebutted, that the jury did not have to

draw the inference, and that the inference imposed no burden of proof on the

defendant. In consequence, counsel could not have been ineffective for failing to

object to the instruction.

The petitioner also argues that his counsel was ineffective for failing to

object to jury instructions which inadequately explained premeditation and

deliberation. In State v. Brown, 836 S.W.2d 530 (Tenn. 1992), decided four years

after the trial of this case, our supreme court clarified the terms, concluding that

each of these elements was separate and distinct from the other.

In Overton v. State, however, our supreme court discouraged use of

30 failure to object to jury instructions as a basis for ineffective assistance. 874 S.W.2d

6 (Tenn. 1994). In Overton, the trial judge charged the jury on the elements of

aggravated rape as defined at the time of trial rather than as defined at the time of

the offense. The petitioner argued his counsel was ineffective for failing to object to

the incorrect jury instructions. Our supreme court rejected the claim:

Although this instruction may well have constituted reversible error in this case [on direct appeal], we agree ... that it is not a cognizable ground for relief in a post- conviction petition. Relief may be granted on a post- conviction petition only when the sentence or conviction is void or voidable because it contravenes a state or federal constitutional right of the defendant. Moreover, to allow every error committed by the trial court to be recast in a post-conviction petition as an ineffective assistance of counsel allegation would be to subvert the limited purposes of the post-conviction procedure.

Id. at 11-12.

The reasoning in Overton has been applied to the question of whether

counsel can be found ineffective for failing to object to instructions on deliberation

and premeditation. In State v. Edwin E. Jesperson, No. 03C01-9602-CC-00058

(Tenn. Crim. App., at Knoxville, Jan. 28, 1997), this court rejected the claim.

Moreover, the primary issue in this case was one of identity. The

theory of the state was that the petitioner watched the victim's house through a pair

of binoculars, waited until everyone but the victim had left, and then subdued the

victim with some type of chemical. This theory, fully accredited by the jury,

presented a classic case of premeditated, deliberate first degree murder. The proof

implied a plan or design on the part of the petitioner and there was every indication

that he acted with a cool, deliberate purpose. Thus, any failure to object to the jury

instructions on these elements of the crime, when the single issue was one of

identity, could have had no impact on the trial.

31 The petitioner also complains that counsel failed to object when the

trial court provided instructions on the cause of death, the meaning of a dangerous

wound, the use of a deadly weapon, and the absence of a material witness. The

petitioner argues that none of these instructions were supported by the evidence

and argues that they served only to confuse the jury.

Certainly, any jury charge should be given only when raised by the

evidence. These topics, however, had little bearing on the results of this trial. That

these instructions were given would not undermine our confidence in the verdict.

Strickland, 466 U.S. at 686.

III

The petitioner filed a pro se brief in support of his post-conviction

counsel's claims. If a person is represented by counsel, however, he has no right to

proceed pro se. State v. Burkhart, 541 S.W.2d 365 (Tenn. 1976). In Burkhart, the

court stated the rule as follows:

In all criminal prosecutions the accused has the right to testify as a witness in his own behalf and to be represented by counsel.

He does not have a constitutional right under the State or Federal Constitution to participate In propria persona in his own defense and simultaneously to be represented by participating counsel.

He may conduct his own defense without benefit of counsel or with an attorney present in the capacity of 'elbow counsel.'

The choice is his; he represents himself or he is represented--one or the other, but not both.

Burkhart, 541 S.W.2d at 371. See also Kenneth Campbell v. State, No. 01C01-

9409-CR-00321, slip op. at 3 (Tenn. Crim. App., at Nashville, June 1, 1995)

(applying the rule in Burkhart to the post-conviction setting).

32 In addition to the issues raised by his counsel, the petitioner contends

that (1) the trial court erred by failing to instruct the jury in deliberating the issues

and reporting its verdict; (2) the trial court erred by failing to properly instruct the jury

on various issues; and (3) the petitioner's case should not be given harmless error

analysis.

These issues are waived. In the post-conviction context, a ground for

relief is waived "if the petitioner knowingly and understandingly failed to present it for

determination in any proceeding before a court of competent jurisdiction in which the

ground could have been presented." Tenn. Code Ann. § 40-30-112(b)(1)(repealed

1995). Our supreme court has held that "the rebuttable presumption of waiver is not

overcome by an allegation that the petitioner did not personally, knowingly, and

understandingly fail to raise a ground for relief." House v. State, 911 S.W.2d 705,

714 (Tenn. 1996). The court continued, "[w]aiver ... is to be determined by an

objective standard under which a petitioner is bound by the action or inaction of his

attorney." Id. Clearly, each claim was available on direct appeal.

The petitioner also argues that State v. Brown, 836 S.W.2d 530 (Tenn.

1992), should be applied retroactively to his case. In Brown, our supreme court

ruled that because of potential juror confusion, trial courts should no longer instruct

the jury that the premeditation required to sustain a first-degree murder conviction

can be "formed in an instant." Yet, this court has repeatedly held that Brown did not

announce a new constitutional principle. Thus, retroactive application is not

permissible. See, e.g., Lofton v. State, 898 S.W.2d 246, 250 (Tenn. Crim. App.

1994). Thus, the issue is without merit.

33 The petitioner's final contention is that the state failed to prove venue,

a state constitutional prerequisite. As stated previously, however, there was ample

evidence to establish venue in Carter County. This issue is clearly without merit.

Accordingly, the judgment of the trial court is affirmed.

__________________________________ Gary R. Wade, Judge

CONCUR:

_____________________________ Paul G. Summers, Judge

_____________________________ William M. Barker, Judge