Melvin Burkett v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1997 November 4, 1997

Cecil W. Crowson

Appellate Court Clerk

MELVIN LEE BURKETT, ) C.C.A. NO. 01C01-9605-CC-00202 )

Appe llant, )

) HUMPHREYS COUNTY

)

V. )

) HON . ALLEN W. W ALLAC E, STATE OF TENNESSEE, ) JUDGE )

Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT: FOR THE APPELLEE:

JANET S. KELLEY JOHN KNOX WALKUP 106 E ast Ma in Attorney General & Reporter Waverly, TN 37185 CLINTON J. MORGAN

Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

C. PHILLIP BIVENS

District Attorney General

GEORGE C. SEXTON

Assistant District Attorney General Humphreys County Courthouse Wa verly, TN 37185

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Petitioner, Melvin Bu rkett, appeals the trial court’s denial of his petition for post-conviction relief. On February 21, 1991, Petitioner was convicted of two counts of aggravated rape fo llowing a jury tria l in the Circuit Cou rt for Humph reys County. He was sentenced to twenty (20) years on the first count and fifteen (15) years on the seco nd cou nt, to be served consecutively. This court affirmed the convictions and sentences following direct appea l by Petitione r. State v. Melvin Burkett , C.C.A. No. 01C01-9110-CC-00303, Humphreys County (Tenn. Crim. App., at Nashville, Oct. 8, 1992) (Rule 11 application denied , concurr ing in resu lts only, Feb. 1 6, 199 3). Pe titioner tim ely filed a petition for post-conviction relief and following an evidentiary hearing, the trial cou rt dism issed the Pe tition. In th is appe al, Petition er argu es tha t he wa s den ied the Sixth Amendment right to the effective assista nce o f coun sel. In addition, Petitioner asserts that the judgment is void as the indictment failed to contain the proper mens rea for the offense of aggrava ted rape . We affirm the ju dgme nt of the trial co urt.

“In post-conviction relief proceedings the petitioner has the burden of proving the allegations in his petition by a prepon deranc e of the ev idence .” McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial court in hearings “are conclusive on appeal unless the evidence preponderates against the judgme nt.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). The trial judge found that there was “no basis” for Petition er’s claims of ineffective assistance by his trial counsel and that Petitioner’s case w as “well-tried.”

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INEFFECTIVE ASSISTANCE OF COUNSEL

In reviewing the Petitioner’s claim of ineffective assistance of cou nsel, th is 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 93 0, 936 (Ten n. 197 5). To preva il on a cla im of ineffec tive cou nsel, a petition er “mu st sho w that c ouns el’s rep resen tation fe ll below an objective standard of reasonableness” and that this performance prejudiced the defense. There must be a reasonable probability that but for coun sel’s error the result of the proceedings would ha ve been different. Strickland v. Washington, 466 U.S . 668, 687 -88 (198 4); Best v. Sta te, 708 S.W .2d 421, 422 (Tenn. Crim . App. 1985 ).

At the post-conviction hearing, Petitioner testified that trial counsel failed to keep h im inform ed and did not do any inves tigation of the case. He alleged that counsel failed to return his telephone calls and directed her secretary to inform Petitioner th at she did not nee d to spea k with him. Petitioner also claimed that counsel failed to offer into evidence certain medical records which Petitioner believed to be exc ulpatory e vidence , as well as failed to ob ject to hearsay testimony at trial. Petitioner claimed that his consecutive sentence was excessive. Other grounds raised by the Petitioner in his pleadings w ere dismissed by Petitioner at the evidentiary hearing.

Trial couns el also testified at the hea ring, and she state d that in preparation for Pe titioner’s trial she file d a mo tion for disco very from the State and received all discove rable inform ation. After ta lking with Petitioner, she was

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prepared to assert an alibi defense, therefore she interviewed and subpoenaed all witnes ses th at she was m ade a ware o f prior to tr ial. Reg arding Petition er’s claim for failure to confer with him, counsel had problems getting Petition er to meet with her. While counsel did not want to get her client in trouble, Petitioner was not cooperating with her and she approached the trial court regarding this issue. A show cause motion was issued and Petitioner w as brough t into court shortly before trial. Petitioner was instructed b y the trial court to coope rate with counsel in preparation of his defense. Following that instruction, counsel was able to mee t with Pe titioner o n three (3) or fo ur (4) o ccas ions p rior to tria l.

Trial counsel testified that she considered the medical report, which Petitioner claimed to be exculpatory evidence, to be at best “ne gative evid ence.” The report conta ined the findings of a physician who examined the victim and found that there was n o indication of any trauma to the vagina. While counsel admitted that this portion of the ph ysician’s report was not de trimenta l to Petitioner’s case, she also realized that the rep ort wou ld not h elp the Petitioner as it would “have given the jury one more doctor to say that this is what [the victim] told me and it would have given the State one more doctor saying this is what I found.” After interviewing the physic ian by te lepho ne an d read ing his findings, coun sel be lieved th e phys ician w ould a lso ha ve testifie d that th e victim ’s hymen was not intact. Trial counsel expla ined that the issue of the social worke r’s hears ay testim ony, w hich sh e obje cted to at trial, ha s bee n prev iously determined on appeal by a pane l of this co urt whic h affirm ed the trial cou rt’s decision to admit the testimony as evidence.

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The trial court stated in his findings of fact that the petition had no substance, and he did not know “much else that [trial counsel] could have done that she did not do” regarding investigation of Petitioner’s case. Specifically, the trial court recalled that he had to adm onish P etitioner in or der to get him to meet with trial couns el. After review of the cou rt file and listen ing to the evidence, the trial court found that there was no exculpa tory eviden ce. The remaining issues were found to be previously de termined by a panel of this court on direct appeal from the conviction s.

After a thorough re view of the record a nd briefs in this ma tter, this court finds that the eviden ce do es no t prepo ndera te aga inst the trial court’s findings. From the record , it is appa rent tha t trial cou nsel d id all tha t she c ould in light of Petition er’s failure to cooperate and participate in his own defense. As far as coun sel’s defense strate gies, this court should not second-guess trial cou nsel’s tactical and strategic choices unless those choices were uninformed because of inadeq uate prepara tion. Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982). Counsel should not be deemed to have been ineffective merely because a different procedure or strategy might have pro duced a different re sult. Williams v. State, 599 S.W .2d 276 , 280 (T enn. C rim. App . 1980).

The trial court found that all other matters raise d by Petitioner we re previo usly determined, and he prop erly dism issed su ch claim s. See Caruthers v. State, 814 S.W.2d 64, 69-70 (Tenn. Crim. App. 1991). This issue has no merit.

INSUFFICIENCY OF INDICTMENT

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Petitioner argues the judgment against him is void due to the failure to allege a particular mens rea for the offe nse o f aggra vated rape in his indictm ent. He bases his argum ent on a recent ca se of this co urt, State v. Roge r Dale Hill, C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App., at Nashville, June 2 0, 1996 ), perm. to appe al granted (Tenn. 1996). In the Hill case, the defendant was indicted for aggravated rape and convicted of aggravated sexua l battery , but the indictm ent co ntaine d no a llegation of a requisite mens rea as he was charged with “unlawfu l sexual pe netration of a victim.”

In the case sub judice, the Petitioner was indicted and convicted of aggravated rape, and the indictment read as follows:

Melvin Burkett . . . d id unla wfully se xually penetra te . . . a fem ale child less than thirteen (13) years of age, in violation of T.C.A. § 39-13-502, all of which is against the peace and dignity of the State of Tennessee.

Petitioner alleges that the failure of the indictment to state that Petitioner acted “intentionally, knowingly or reck lessly” is fatally defic ient, an d Petitio ner’s conviction shou ld be re verse d and dism issed . The a ggrav ated ra pe sta tute in force at the time the Petitioner was indicted provided, in pertinent part, as follows:

Aggravated rape is unlaw ful sexual penetration of a victim by the defendant . . . [where] the victim is less than thirteen (13) years of age.

Tenn. C ode Ann . § 39-13-502 (a)(4)(1991 R epl.).

This court ha s held tha t nothing in our crim inal code requires an indictm ent to allege the mens rea of an offense unless the statute specifically states the mens rea as an ele ment o f the offens e. See State v. James Dison, C.C.A. No. 03C01-

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9602-CC-00051, slip op. at 17, S evier Co unty (Te nn. Crim . App., Knoxville, Jan. 31, 1997) (Rule 11 application filed March 14, 1997). A defendant must be provided notice of the elements of the offense which “sufficiently apprise[ ] the accused of the o ffense he is called upon to d efend.” State v. Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995). Therefore, the allegation of criminal conduct in an ind ictme nt is constitutionally adequate as a form of notice to the defendant and mens rea is not a n esse ntial elem ent of the o ffense. State v. James Julian, II, C.C.A . No. 0 3C0 1-951 1-CV -0037 1, slip op. at 42, Loudon County (Tenn. Crim. App., Knoxville, July 29, 19 97); citing Dison, slip op. at 17 ; State v. Phillip Griffis and Melissa Ro gers, C.C.A. N o. 01C 01-950 6-CC -00201 , slip op. at 16, Maury County (Tenn. Crim. App., Nashville, Apr. 30, 1997). Upon review, we find the indictment for aggravated rape as charged in the indictment in Petitioner’s case was co nstitutiona lly sufficient an d valid. Th is issue is w ithout me rit.

We affirm the ju dgme nt of the trial co urt.

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____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JOE G. RILEY, Judge