IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1997 January 28, 1998
Cecil W. Crowson RAYMOND O. JACKSON, ) Appellate Court Clerk C.C.A. NO. 01C01-9608-CR-00368 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. ANN LACY JOHNS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL R. BARRETT, JR. JOHN KNOX WALKUP Wa shington Sq uare-Two Suite 417 Attorney General and Reporter 222 Se cond A venue, N orth Nashville, TN 37201 DARYL J. BRAND Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243
VICTOR S. JOHNSON District Attorney General
ROGER D. MOORE Assistant District Attorney General Washington Square - Suite 500 222 Se cond A venue, N orth Nashville, TN 37201-1649
OPINION FILED ________________________
REVERSED AND REMANDED
DAVID H. WELLES, JUDGE OPINION
The Petitioner, Raymond O. Jackson, appe als as o f right pu rsuan t to Ru le
3 of the Tennessee Rules of Appellate Procedure from the trial court’s denial of
his petition for post-conviction re lief. It appears that on M arch 6, 198 0, the
Petitioner was convicted of assault with intent to commit murder, armed robbery,
and kidnapping.1 He was sentenced to five to twenty-one yea rs for the ass ault,
fifteen years for the robbery, and fifty years for the kidnapping. The sentences
were ordered to run consecutively. He filed a pro se petition for post-conviction
relief, appa rently his third, on June 30, 1989. Counsel was appointed on
February 6, 1990 . The trial court initially dismissed the petition on February 13,
1990, but later withdrew the order of dismissal to allow the Petitioner to present
further evidence. On March 12, 1996, the trial court entered an order denying the
petition. It is from this order that the Petitioner now appeals. For the reasons set
forth below, we reverse the dismissal of the petition and remand this case to the
trial court for further proceedings consistent with this opinion.
W e begin our discussion by noting that the record does not contain a
transcript from any hearing on this pe tition for post-c onviction re lief. In fact, the
record does not even contain a copy of the petition. As such, informatio n
regarding the circumstances of the Petitioner’s offenses and the evidence
surrounding the petition for post-conviction relief is somewhat limited. The
1 The record in this case is exceptionally sparse. As a result, we have had to piece together the in form ation whic h we relate in this o pinion from seve ral so urce s, inc luding the o pinion s of th is Court from the Pe titioner’s direct appeal and prior petitions for post-conviction relief.
-2- opinion of this Court from the Petitioner’s direct appeal contains the following
description of the circumstances of the offenses:
The defendant was convicted of the assault, robbery and kidnapping of Mr. Jam es M. G owin, a young man 19 years of age. At about 11:00 P.M. on May 22, 1978, Mr. Gowin encountered the defend ant, Jackson, and his co-defendant, Claude Douglas Copeland, at a parkin g lot on Eighth Avenue South in Nashville. These two m en told Mr. Go win that they were having car trouble and asked him to take them to a mechanic. Copeland introduced hims elf as Larry Lewis, and the defendant stated that his name was Kenn eth Martin. Afte r some hesitation , Mr. Gow in conse nted to assist Jackson and Copeland. The defendant, Jackson, got in the rear seat of the auto mob ile beh ind the driver, a nd Co pelan d sat in the front seat. They directed Gowin’s driving and reached the intersection of Wedgewood and Eighth Avenue. When they reached this interse ction, th ey state d that th is was their destination but asked him to take them home for a brief time. They gave Gowin directions; and after making many turns, they arrived at the intersection of Murfreesbo ro and W harf Avenue which was n ot far from their beginning point at Wedgewood and Eighth. Copeland got out of the car and left Jackson in the back seat; in about 10 minutes, Copeland returned. Copeland resum ed givin g driving instruc tions w hich h e said would return them to Wedgewood and Eighth A venue. A t one po int, Copeland told Gow in to slow d own. W hen G owin ha d slowe d to about 5 miles per hour, Copeland grabbed the gear stick and pushed it from “drive” to the “park” position. At about the same time, Copeland put a knife to the victim ’s throat. Jackson got out of the car and brandish ed wha t appea red to be a “folding k nife.” After forcing the victim out o f his automobile, Jackson and Copeland took his watch, wallet, shirt and tennis shoes. They then forced the victim to the back floorboard of his automobile, and Copeland drove the car away with Jackson sitting beside him in the front seat. Jackson then forced the victim to remove his bluejeans and became very angr y when he lea rned th at there was a sma ll amount of change in the bluejeans which the victim had not given to them. They continued to drive around Nashville for about 30 minutes while Jackson and Copeland argued about whether or not they shou ld kill Gowin. Jackson wanted to kill Gowin, and Copeland did not. During this time, Jackson cut the victim with his knife. They stopped the automobile; and after forcing the victim into the trunk, they continued to drive for an additional 30 minutes. They stopped the car again, dragged the victim from the trunk and “threw him” against a telephone pole. Jac kson the n bega n frantically to stab the victim in the back and sliced h is throat and back with the knife. Copeland, standing nearby, told Jackson to “hurry up.” They event ually left in the victim’s automobile. Being unable to walk, the victim crawled to a house in the neighborhood and obtain ed assistance. It was determined that he was stabbed 19 times with
-3- the knife. The “front and back” of his throat were cut, and there were long cuts down his back.
State v. Raymond O. Jackson, C.C.A . No. C -3599 , David son County (Tenn.
Crim. App., Nashville, Mar. 12, 1981). Through the direct appeal, the Petitioner
did not challe nge the sufficiency of the con victing evide nce. He focused instead
on the evidentiary issue of whether the trial court had erred in admitting evidence
of a subsequent crime for the purpose of establishing the p erpetrator’s identity.
Id., slip op. at 1. A panel of this Court found that the issue lacked merit and
affirmed the Petition er’s conv ictions. Id.
Shor tly after this Court affirmed his convictions, the Petitioner filed his first
petition for post-conviction relief. In that petition, he alleged that he had been
denied effective as sistance of couns el at trial. Raym ond O . Jackson v. S tate,
C.C.A. No. 82 -217- III, David son C ounty (Ten n. Crim . App., Nash ville, Nov. 25,
1983), perm. to appeal denied (Tenn. 1984). More specifically, he asserted that
his trial counsel had failed to investiga te his cas e adeq uately, failed to
comm unicate with him, and failed to prese nt an alibi de fense a t trial. Id., slip op.
at 1-2. After conducting an evidentiary hearing, the trial court found that the
Petition er’s allega tions la cked merit a nd dis miss ed the petition on October 26,
1982. Id. at 1. A panel of this Court affirmed the dismissal on November 25,
1983. Id. at 4. Our supreme court denied permission to appeal on March 12,
1984.
Shor tly thereafter, the Petitioner filed a second petition for post-conviction
relief. In this petition, he again argued that he was denied effective assistance
of couns el at trial. Raymond O. Jackson v. S tate, C.C.A. N o. 85-32 9-III,
-4- Davidson Coun ty (Tenn. Crim. App., Nashville, Dec. 18, 1986), perm. to appeal
denied (Tenn. 1987). More specifically, he asserted that trial counsel was
ineffective in that he failed to request a mental competency evaluation and failed
to advanc e an insa nity defen se. Id., slip op . at 1. Th e trial court denied the
petition. A panel of this Court affirmed the denial, concluding that the issue had
been waived beca use it should ha ve been included in the first petition for p ost-
conviction relief. Id. at 1-2. Our supreme court denied permission to appeal on
March 9, 1987.
The Petitioner filed his third petition for post-conviction relief, which is the
subject of the case sub judice, on June 30, 1989. Unfortunately, as we stated
above, the record does not contain a copy of the petition . From the trial c ourt’s
order denying the petition, it seems that this petition, like the second petition,
contained a challenge to the effectiveness of trial cou nsel b ased on co unse l’s
failure to pursue a competency evaluation and an insanity defense. In addition,
it appears that the present petition contained a challenge to the effectiveness of
the Pe titioner’s prior post-conviction co unsel for failure to raise the first is sue in
previous post-conviction petitions. Yet because the record does not contain the
petition for post-conviction relief, we c annot determ ine with an y reaso nable
degree of certainty th e issues presen ted in it.
The record does indicate that counsel was appointed on February 6, 1990
to assist th e Petitio ner. The record also ind icates that the trial cou rt initially
dismissed the petition on February 13, 1990, but later withdrew the order of
dismissal to allow the P etitioner to present further evidence. It is unclear from the
record what proceedings actually transpired with regard to the case sub judice.
-5- In particu lar, it is unclear whether the trial court conducted an evidentiary hearing
on the present petition. On March 12, 1996, the trial court issued an order
dismissing the petition. After reviewing the record, the trial court concluded that
the first issue, regarding trial counsel’s failure to pursue a competency evaluation
or an insanity defense, had been previous ly determ ined. See Tenn. Code Ann.
§§ 40-30-111 , -112(a) (repeale d 1995). The trial court pointed out that this very
issue had been raised in the seco nd post-con viction petition. The trial court
further concluded that the second issue, regarding the effectiveness of prior post-
conviction counsel in failing to purs ue the first issue, lacked merit under the
holding of our supreme court in Hous e v. State, 911 S.W.2d 705 (Tenn. 1995)
(reiterating that a claim of ineffective a ssistanc e of coun sel in a pre vious po st-
conviction proce eding is not co gniza ble as a bas is for relie f in a subse quent p ost-
conviction action). The trial court also stated that “[t]o the extent that the instant
Petition attem pts to a ssert a ny new groun ds for re lief, the Co urt finds sa me to
have been waived as the record is devoid of any evidence to overcome the
statutory presump tion of waiver.” See Tenn. Code Ann. § 40-30-112(b)(1), (2)
(repealed 1995). A ccordingly, the trial court dismissed the petition. The
Petitioner filed a notice of appeal on April 11, 1996.
It is at this point in the history of the case at bar that problems with the
location of the record arise. The record on appeal was originally due to be filed
on August 22, 1996. On August 20, 1996, the trial court clerk requested an
extension of time for the filing of the record. In support of this request, the trial
court clerk submitted an affidavit stating the following:
At the present time this file cannot be found. I have part of the file, but since it is rather old, part of the case folder has been separated from the other pa rt. It was filed out of Judge John’s [sic]
-6- Court, part of th e file wa s in he r office a nd in a ll the moving when she [Judg e Joh ns] left th e file has just gotten misplaced. I just need more tim e to find it.
This Court granted the request, ordering that the trial court clerk have up to and
including September 20, 1996, to file the record.
On September 16, 1996, the trial court clerk filed a request for a second
extension. The affidavit in support of the extension request stated the following:
Ms. Armstrong , in the District Attorney General’s Office has been helpin g me recon struct th e file by sending me copies of the file that they have. She has yet to find all that I need to finish the appe al, that is why I am requesting an additional 15-20 days until October 11, 1996 to complete the record. Hopefully I will have it before then.
This Court granted the second extension request, ordering that the trial court
clerk have up to and including October 11, 1996, to file the record.
On October 10, 1996, the trial court clerk filed a reques t for a third
extension. In the affidavit supporting the request, the trial court clerk stated that
she had no t yet been able to loc ate the case file. In addition, the trial court clerk
indicated that the District A ttorney Gen eral’s office had not been able to provide
her with sufficient information to reconstruct the entire file. This Court granted the
extension request, ordering that the trial court clerk have up to and including
December 13, 19 96, to file the rec ord. In g ranting the exte nsion reque st, this
Court ordered further tha t the “district attorney general and counsel for the
appellant are hereby directed to assist the trial court clerk in locating or
recons tructing the record in th is matter.”
-7- The record was eventually filed on December 16, 1996. Accompanying the
record was an affidavit from the trial court clerk which stated the following:
As you recall, th e cas e file cannot be located and several extensions were filed in this matter. An order was sent to me and other parties requesting them to assist m e in recon structing th e file. As of th is date none have contacted me with any information. Therefore, I am send ing all th e pap erwor k I have pertain ing to th is app eal.
As we sta ted ab ove, the record is sparse. It contains copies of the original arrest
warran ts for the Petitioner. It contains the trial court’s March 12, 1996, order of
dismissal and the Petitioner’s April 11, 1996, notice of appeal. Other than those
documents, the record contains only tangential correspondence between the
Petitioner and th e trial co urt clerk and a notice of entry of co unsel for a ppellate
purposes. The record does not conta in a tran script o f any he aring o n this matter,
nor doe s it contain a copy of the petition for p ost-con viction relief.
The Petitioner’s brief was originally due on Janu ary 15, 19 97. Due to
illness in counsel’s office, two extension motions were granted by this Cou rt, the
result being that the Petitioner was allowed up to and including March 10, 1997,
to file his brief. On March 10, 1997, cou nsel for the Petitioner filed a third
extension motion. This motion indicated that counsel believed the record was not
sufficient at that time to support the submission of a brief. Counse l was therefore
requesting additional time to attempt to “locate or piece together” a transcript for
the record. C ounse l stated tha t if the record could not be supplemented by
March 31, 1997, then he would su bmit a brief rather tha n request additional
extensions. This Court granted the extension motion, ordering that the Petitioner
have up to and including March 31, 199 7, to file his brief. The order did,
however, note the following:
-8- On November 14, 1996, this Court entered an order giving the trial court clerk up to and including December 13, 1996, in which to file the record in this appeal. The order directed the district attorney general and counsel for the appellant to assist the trial court clerk in locating or reconstructing the record in this matter. The record was subsequen tly filed by the trial court clerk on December 16, 1996, and no motion to supplement the record has been filed pursu ant to T.R.A.P. 24(e). Counsel for the appellant was given an opportu nity to ensure that the record on appeal was located or reconstructed, and the Court finds that this matter has been unnecessarily delayed.
The order also stated that absent exceptional circumstances, no further
extensions would be granted.
The Petitioner filed his brief on March 31, 1997. The brief points out that
the record in this case has apparently been lost. The brief continues by stating
that “[i]n order not to argue outside the record as pre sently c onstitu ted, it sh ould
be noted that the hearings in the last several years dealt with the ineffective
assistance of couns el in failing to pu rsue an issue of co mpete ncy for an insanity
defense. Accordingly, no additional facts will be stated.” The argument
contained in the brief is cursory and essentially indicates that the state of the
record would make a thorough discussion of the post-conviction petition outside
the scope of the record. As a result, the specific relief sought by the Petitioner
in his brief is that this Court “rend er a decision ap propriate for the matters
containe d in the rec ord.”
The State’s reply brief also n otes th at the re cord w as “gro ssly inadeq uate.”
The State points out that it is the appellant’s ob ligation to ensure tha t the record
is sufficie nt to allo w me aning ful revie w on a ppea l. State v. Ballard, 855 S.W.2d
557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24. Given the inadequacy of the
record, the State argues that this Court cann ot conside r the me rits of the po st-
-9- conviction petition but rather must presume that the ruling of the trial court was
correct. Ballard, 855 S.W.2 d at 560 -61; State v. S mith, 891 S.W.2d 922, 932
(Tenn. Crim. App . 1994); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App.
1993). In addition, the State contends that an allegation that the Petitioner’s prior
post-c onviction counse l was ineffe ctive does not furnish ground s for post-
conviction relief beca use the re is no co nstitutiona l right to effective assistance of
counsel in post-co nviction pro ceedin gs. See Hous e v. State, 911 S.W.2d 705,
712 (Tenn. 1995). The State therefore requests that this Court affirm the
judgment of the trial court dismissing the petition.
After carefu lly examining the record, we agree that it is inadequate to allow
meaningful review on appeal. In fact, the record does not contain a copy of the
petition for post-conviction relief. Thus, we canno t be certain wha t issues were
presented by the Petitioner. Accordingly, because the record does not conta in
the proceedings and documents relevant to the issues raised in the pe tition, this
Court is precluded from considering the merits of th e Petitione r’s issues. Ballard,
855 S.W.2d at 560-6 1; Banes, 874 S.W.2d at 82; State v. B ennett, 798 S.W.2d
783, 789 (Tenn. Crim. App. 1990), cert. denied, 500 U.S. 915, 111 S.Ct. 2009,
114 L.Ed.2 d 98 (1991 ).
The present case does, however, present an unusual scenario. The
docum ents necessary for a n adequa te record were apparently lost or misplaced
through no fau lt of the P etitioner. T he trial court clerk attempted to locate the
entire case file, but to no avail. The trial court clerk’s first extension request
seems to indicate that the case file may have been misplaced in the confusion
of moving as the trial judge who heard the petition left office. Of course, we do
-10- not know for certain what happened to the case file. What we do know is that the
trial court clerk’s case file does no t contain sufficient documentation of the
proce eding s belo w to furn ish an adeq uate re cord o n app eal.
Given these circumstances, we believe we must reverse the judgment of
the trial court and remand this case for further proceedings. Because it appears
unlike ly that the trial court clerk will be able to locate the actual case file, the case
should first procee d with an attem pt by the p arties to rec onstruc t the record . In
this vein, we believe the pro cedu re sho uld be similar to that set forth in Rule 24(c)
of the Te nness ee Ru les of Ap pellate P rocedu re.
In the case sub judice, we believe the burden is first on the Pe titioner to
attempt to reconstruct a su fficient record of the p rocee dings below . This attempt
will obviou sly take place in conjunction with input and a response from the District
Attorney General’s office. U pon com pleting the recon struction of a sufficient
record, the Petition er and th e State s hall prese nt the reco rd and th eir argum ents
on the issue s raised to the trial cour t. We recognize that the passage of time has
rendered this task difficult, if not impos sible. If the Pe titioner and the State
cannot recon struct a sufficie nt record to allow meaningful review of the issues
presented, we see no alternative but to allow the Petitioner to file an amended
petition for post-co nviction relief. In that even t, we direct the trial court to allow
the Petitioner to file the amended petition for post-conviction relief relating back
to his origina l, pro se petition , appa rently filed on June 30, 1989. Proceedings on
the amended petition must then begin anew. Because the record from the trial
court ha s been lost, we be lieve fairnes s dictates this result.
-11- For the reasons set forth in the discussion above, we conclude that the
judgment of the trial court dismissing the petition for post-conviction relief must
be reversed. We remand this case to the trial court for further proceedings
consistent with this opinion.
____________________________________ DAVID H. WELLES, JUDGE
CONCUR:
___________________________________ JOHN H. PEAY, JUDGE
___________________________________ JOSEPH M. TIPTON, JUDGE
-12-