IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION FILED March 30, 1998
JIMMY DALE HIGH, ) Cecil Crowson, Jr. ) Appellate C ourt Clerk APPELLANT, ) ) No. 02-C-01-9702-CR-00069 ) ) Shelby County v. ) ) Honorable W . Fred Axley, Judge ) ) (Post-Conviction Relief) STATE OF TENNESSEE, ) ) APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE
R. Price Harris John Knox Walkup Attorney at Law Attorney General & Reporter 3074 East Street 425 Fifth Avenue, North Memphis, TN 38128 Nashville, TN 37243-0497
Deborah A. Tullis Assistant Attorney General 425 Fifth Avenue, North Nashville, TN 37243-0493
William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103
C. Alonda Horne Assistant District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103
OPINION FILED:_______________________________
AFFIRMED
Joe B. Jones, Presiding Judge OPINION
The appellant, Jimmy Dale High (petitioner), appeals as of right from a judgment of
the trial court dismissing his post-conviction action after an evidentiary hearing. Three
issues are presented for review. The petitioner contends (a) he was denied his
constitutional right to the effective assistance of counsel, (b) certain omissions occurred
during his trial which entitle him to relief, and (c) the trial court failed to address certain
grounds raised during the evidentiary hearing. After a thorough review of the record, the
briefs submitted by the parties, and the law governing the issues presented for review, it
is the opinion of this court that the judgment of the trial court should be affirmed.
I.
PRIOR PROCEEDINGS
The petitioner was tried and convicted of robbery by a jury of his peers. He was
sentenced to serve fourteen (14) years in the Department of Correction. He subsequently
appealed his conviction and sentence as of right. This court affirmed the judgment of the
trial court. State v. Jimmy Dale High, Shelby County No. 02-C-01-9312-CR-00275, 1994
WL 553282 (Tenn. Crim. App., Jackson, October 12, 1994). The mandate was issued on
February 15, 1995.
This action was filed on February 2, 1995. Counsel was appointed to represent the
petitioner on March 6, 1995. An amended petition was prepared and filed by counsel on
August 11, 1995. Present counsel was substituted as counsel of record on May 16, 1996.
An evidentiary hearing was conducted on August 8, 1996. The trial court filed its
findings of facts and conclusions of law on September 11, 1996.
II.
STANDARD OF REVIEW
When the trial court has conducted an evidentiary hearing to permit a petitioner to
2 ventilate the grounds raised in support of an action for post-conviction relief, the trial court’s
findings of fact are afforded the weight of a jury verdict. Dixon v. State, 934 S.W.2d 69,
71-72 (Tenn. Crim. App. 1996); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim.
App. 1988), cert. denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989).
Consequently, this court is bound by the trial court’s findings of fact unless the evidence
adduced at the hearing preponderates against the trial court’s findings. Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994), per. app. denied (Tenn. 1995).
There are several well-established rules which govern appellate review in post-
conviction cases. As this court said in Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.
App.), per. app. denied (Tenn. 1990):
First, this Court cannot reweigh or reevaluate the evidence; nor can we substitute our inferences for those drawn by the trial judge. Second, questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are resolved by the trial judge, not this Court. Third, the appellant has the burden in this Court of illustrating why the evidence contained in the record preponderates against the judgment entered by the trial judge.
This court will now proceed to consider the merits of the petitioner’s contentions.
In doing so, this court will apply the aforementioned principles governing appellate review
in post-conviction actions to determine whether the evidence adduced at the hearing
preponderates against the trial court’s findings of fact. See Clenny v. State, 576 S.W.2d
12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d
1050 (1979).
III.
INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends the evidence preponderates against the trial court’s findings
of fact that he was afforded his constitutional right to the effective assistance of counsel.
He argues the evidence adduced at the evidentiary hearing establishes trial counsel failed
to (a) properly investigate the case and file appropriate motions, (b) conduct a Morgan
3 hearing, (c) object to the testimony of Henry S. Baker, a co-defendant, when Baker stated
on direct examination the petitioner had been an inmate at the Shelby County Correctional
Center, (d) vigorously cross-examine Baker, (e) request the trial court to charge the range
of punishment and the lesser included offenses supported by the evidence, and (f) object
to the uncorroborated testimony given by Baker.
A.
When the petitioner seeks to vitiate a conviction on the ground he was denied his
constitutional right to the effective assistance of counsel, the petitioner must establish by
a preponderance of the evidence (a) the services rendered or advice given by counsel fell
below “the range of competence demanded of attorneys in criminal cases,” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofessional conduct of counsel enured
to the prejudice of the petitioner. Williams v. State, 599 S.W.2d 276, 279 (Tenn. Crim.
App.), per. app. denied (Tenn. 1980). The United States Supreme Court subsequently
adopted this two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). The Tennessee appellate court decisions following Strickland are
legion.
This court’s review is guided by certain well-established standards. First, the
standard created in Baxter does not require perfect representation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Second, it is not the function of an appellate court to “second
guess” trial counsel’s tactical and strategic choices pertaining to matters of defense unless
these choices were made without knowledge of the relevant facts or the law applicable to
the issue. Hellard, 629 S.W.2d at 9; McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim.
App.), per. app. denied (Tenn. 1983); see People v. Corona, 80 Cal. App.3d 684, 145 Cal.
Rptr. 894 (1978). As the supreme court said in Hellard: “[T]he defense attorney’s
representation, when questioned, is not to be measured by ‘20-20 hindsight.’” 629 S.W.2d
at 9. Third, an accused is not deprived of the effective assistance of counsel because a
different procedure or strategy might have produced a different result. Williams, 599
S.W.2d at 279-80; Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied
4 (Tenn. 1974).
B.
The petitioner asserts counsel was ineffective because he failed to perform the acts
hereinabove set forth. The testimony of the petitioner and counsel conflict regarding these
assertions. Moreover, the petitioner has failed to establish he was prejudiced assuming
arguendo his assertions are accurate. Thus, the evidence contained in the record does
not preponderate against the trial court’s findings of fact. Butler, 789 S.W.2d at 899;
Adkins, 911 S.W.2d at 347.
(1)
The petitioner asserts counsel failed to visit him in the jail a sufficient number of
times, failed to talk to him on the telephone, failed to conduct proper discovery, failed to
talk to potential witnesses, and failed to file sufficient motions. This court will address each
of these assertions.
The petitioner testified trial counsel came to see him in the jail on two occasions.
Both of these occasions were shortly before the trial was to commence. Counsel testified
he went to see the petitioner on three or four separate occasions. The petitioner testified
counsel would not talk to him on the telephone and he would disconnect his calls or hang
up the receiver while talking to him. Counsel testified the petitioner would call him every
time he had telephone privileges. He would call counsel between 8:00 A.M. and 9:00 A.M.
practically every morning and on Sundays. Counsel stated he never refused to talk with
the petitioner. However, counsel admitted on rare occasions it was possible the petitioner
may have been accidentally disconnected or counsel may have inadvertently failed to take
the call. According to counsel, the employees who answered the telephone in his office
were instructed not to inquire who was calling. Thus, counsel never knew who was calling
him until he answered the telephone.
The record establishes trial counsel went to the District Attorney General’s Office
and read their entire file on the petitioner. Later, he returned and obtained copies of
5 certain documents. He took these documents to the jail and permitted the petitioner to
review them. The petitioner admitted he saw his statement, Baker’s statement, a list of the
petitioner’s convictions the state intended to use to impeach him if he opted to testify in
support of his defense, and a list of the petitioner’s prior convictions the state intended to
use to enhance his sentence. Counsel also discussed with the petitioner the evidence the
state would introduce if he went to trial. In addition, trial counsel advised the petitioner
Baker was going to “dump on him,” meaning testify as a prosecution witness, if he went to
trial.
The petitioner gave trial counsel the names of three witnesses, and he told trial
counsel what each witness would say if called as a witness. Counsel told the petitioner the
testimony would not be admissible as evidence. The petitioner admitted trial counsel
talked with a drug counselor at the Shelby County Correctional Center, who was one of the
witnesses named by the petitioner. Counsel talked to the remaining two witnesses prior
to trial. These interviews confirmed trial counsel’s initial conclusion that the testimony of
the witnesses would not be admissible. One of the witnesses appeared at the trial “half-
high.” The petitioner agreed to release this witness.
The petitioner did not call these witnesses during the evidentiary hearing. Assuming
arguendo trial counsel fell below the standard expected of counsel in criminal prosecutions,
Baxter v. Rose, supra, the petitioner has failed to establish prejudice by not producing the
witnesses at the evidentiary hearing. Black, 794 S.W.2d at 757-58.
The petitioner asserts counsel failed to file appropriate motions. However, the
petitioner has failed to (a) establish the motions trial counsel should have filed and (b)
show how he was prejudiced by the failure of counsel to file these motions.
In summary, the petitioner has failed to establish trial counsel’s representation fell
below the standard established in Baxter v. Rose, supra. Also, the petitioner has failed to
establish how he was prejudiced. Strickland v. Washington, supra.
(2)
The petitioner asserts trial counsel was ineffective because he failed to conduct a
6 Morgan hearing. Trial counsel advised the trial court he wanted a Morgan hearing before
he cross-examined Baker. While both the assistant district attorney general and the trial
court advised counsel a Morgan hearing was to determine the admissibility of an accused’s
prior convictions, the trial court told counsel he would conduct the hearing. Counsel then
advised the court such a hearing would not be necessary. This court must assume this is
the hearing which the petitioner has raised in his petition.
The assistant district attorney general asked Baker about his prior convictions
during a jury-out hearing. He told Baker trial counsel would question him about his prior
convictions. The assistant district attorney general elicited all of Baker’s prior convictions
during direct examination. Trial counsel also questioned Baker about these same prior
convictions. Neither counsel objected to the admissibility of these convictions.
In summary, a Morgan hearing, or any hearing of a like or similar nature, was not
necessary in this case. The assistant district attorney general stipulated to the prior
convictions and asked Baker about these convictions. Defense counsel was permitted to
ask similar questions during cross-examination. Thus, the petitioner has failed to establish
either that trial counsel fell below the Baxter v. Rose standard or the petitioner was
prejudiced in this regard.
(3)
The petitioner asserts trial counsel failed to object to Baker’s testimony as it related
to the petitioner’s “prior criminal history or status at the time” of the robbery. The record
reflects the petitioner and Baker were inmates at the Shelby County Correctional Center.
During a work detail, the petitioner and Baker escaped. They committed the robbery of a
convenience store a few days later. Baker stated on direct examination:
Q. You know Jimmy Dale High, is that correct?
A. Yes, sir.
Q. Okay. I believe back in 1991 you-all escaped from the penal farm together; is that correct?
Q. Would you tell the jury about your escape and what you-all did as far the Circle K robbery on 1440 Getwell?
7 A. When we escaped from the -- walked off from the Mid- America Mall on work call, it was a lot of things that happened up to a point. It was at one point, as far as the robbery goes, we was in a truck.
Trial counsel was not ineffective because he failed to object to this testimony. This
evidence was admissible to establish why the petitioner and Baker were together when
they committed the robbery of the convenience store; the evidence was therefore relevant
to establish a material fact. See State v. Adkisson, 899 S.W.2d 626, 646 (Tenn. Crim.
App. 1994). Moreover, if this issue had been considered on direct appeal, it would have
been categorized as harmless error given the wealth of evidence establishing the
petitioner’s guilt. Tenn. R. App. P. 36(b).
(4)
The defendant asserts counsel was ineffective because he failed to vigorously
cross-examine Henry S. Baker, the accomplice. He refers to counsel’s cross-examination
as “inadequate and lackadaisical.” This court has read the testimony of Henry S. Baker.
The record reveals the cross-examination of Baker was thorough, penetrating, and
complete.
Trial counsel questioned Baker at length. He established numerous conflicts
between Baker’s trial testimony and the statement he gave to the police after his arrest.
He questioned Baker regarding his prior convictions. In addition, counsel used Baker’s
testimony to mitigate the petitioner’s involvement in the robbery. The cross-examination
was methodical, and it is obvious trial counsel was well prepared to cross-examine Baker.
(5)
The defendant asserts trial counsel was ineffective because he did not pursue the
convicting trial court’s failure to charge the lesser included offense of theft under $500.
The petitioner failed to establish what trial counsel could have done to pursue this matter.
Baker had told the police he did not have a weapon, he did not intimate he had a
8 weapon, and he did not coerce the victim. The amount taken was $28. Of course, Baker’s
trial testimony established he placed his hand in his back pocket, and he told the victim he
did in fact have a weapon.
Trial counsel moved the trial court to instruct the jury on theft under $500 based
upon his cross-examination of Baker. The trial court refused to give the instruction. This
issue was litigated in the petitioner’s appeal as of right.
In summary, trial counsel protected the record regarding this instruction, and it was
raised on appeal. This court held such an instruction was not warranted. Counsel certainly
could not coerce or compel either the trial court or the appellate court to grant him relief on
this issue.
(6)
The petitioner asserts counsel was ineffective because he failed to object to the
uncorroborated testimony of Henry S. Baker, an accomplice of the petitioner. He has failed
to establish a valid basis for objecting to this testimony.
This court seriously doubts trial counsel could initially object to Baker’s testimony.
Baker was a competent witness, he had firsthand knowledge of the events in controversy,
and his testimony was both material and relevant to the crime. If the state failed to
corroborate Baker’s testimony, trial counsel could have moved to strike Baker’s testimony,
or, in the alternative, moved the trial court for the entry of a judgment of acquittal on the
ground the only testimony connecting the petitioner to the robbery was Baker’s
uncorroborated testimony.
While this court agrees Baker was an accomplice of the petitioner as a matter of
law, and the trial court should have given an instruction on the need to corroborate the
testimony of an accomplice, this record is insufficient to determine whether such an
instruction was given to the jury. The charge of the trial court is not included in the record
transmitted to this court. Tenn. R. App. P. 24(b). In any event, the record establishes
Baker’s testimony was corroborated. The petitioner’s statement to the police was
introduced into evidence. This statement established the petitioner was with Baker when
the robbery occurred. Otherwise, the petitioner’s statement was exculpatory.
9 IV.
CONVICTING TRIAL COURT OMISSIONS
The petitioner contends the trial court committed egregious error which resulted in
his conviction. He alleges the court (a) gave an inadequate charge to the jury because the
charge did not include certain lesser included offenses raised by the evidence, (b) allowed
the uncorroborated testimony of Baker to be disseminated to the jury, and (c) failed to
include a constitutional reasonable doubt instruction in the charge given to the jury.
These grounds have either been previously determined or waived. Tenn. Code
Ann. § 40-30-112 (repealed 1995). A ground has been previously determined when “a
court of competent jurisdiction has ruled on the merits after a full and fair hearing.” Tenn.
Code Ann. § 40-30-112(a)(1990) (repealed 1995).
As to waiver, the applicable statute, Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)
states: 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.
There is a rebuttable presumption that a ground for relief not raised in any such proceeding which was held was waived.
These grounds could have been raised during the trial and on appeal. Moreover, the
petitioner did not offer any proof to rebut the waiver of these issues.
This court views this issue as an attempt to obtain appellate review of these
grounds. It has long been established in this jurisdiction that a post-conviction proceeding
cannot be used as a substitute for an appeal. Swanson v. State, 749 S.W.2d 731, 733
(Tenn. 1988); State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987); Rhoden v. State,
816 S.W.2d 56, 63 (Tenn. Crim. App.), per. app. denied (Tenn. 1991).
This issue is without merit.
V.
POST-CONVICTION TRIAL COURT OMISSIONS
The petitioner contends the post-conviction trial court failed to rule on all issues he
10 raised at the evidentiary hearing. He argues the court failed to address paragraphs B
through E contained in his petition, and the court further failed to determine the merits of
“the oral amendments” made during the evidentiary hearing.
The evidentiary hearing transcript reveals petitioner’s counsel stated:
And I’d like to also -- we’ll amend that it is time to include or to broaden that to include that we are requesting instruction from the Court as to lesser pleaded offenses. It may have been clearer, for example, facilitation to commit a felony.
The petitioner does not cite the page or pages where paragraphs B through E are
located in the record. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Thus,
this court must assume the petitioner makes reference to the following grounds contained
in the pro se petition: (a) “instruct the jury as to accomplice testimony,” (b) allowing
“uncorroborated accomplice testimony to be used to convict the petitioner,” (c) “properly
instruct the jury as to the corroboration rule of an accomplice’s testimony,” and (d) his
“rights to due process were violated when the jury was not informed of the plea deal of the
co-defendant.”
The law applicable to the proceedings in this case provides that post-conviction
actions were commenced by the filing of a “written petition with the clerk of the court where
the conviction occurred.” Tenn. Code Ann. § 40-30-103(a)(1990) (repealed 1995). The
petitioner was entitled to amend the petition. Tenn. Code Ann. § 40-30-107(1990)
(repealed 1995). While the statute does not state the amended petition must be in written
form, the statute by implication requires the amended petition to be in written form because
the statute states the petitioner is to “file” the amended petition with the clerk. Tenn. Code
Ann. § 40-30-107(1990) (repealed 1995). This statute relates back to the statute requiring
the filing of a written petition.
In this case, the initial petition was filed on February 2, 1995. The first attorney was
appointed to represent the petitioner on March 6, 1995. Counsel filed an amended petition
on August 11, 1995. Present counsel was substituted as counsel of record on May 16,
1996. The evidentiary hearing was held on August 6, 1996. Thus, the petitioner had
11 eighteen months to amend his petition. Present counsel had almost three months to
further amend the petition.
The record does not reflect a motion and/or order pertaining to an amendment. Nor
did the petitioner make an oral motion which specifically requested permission to amend
the petition. Furthermore, the petitioner did not file a written amendment during or after the
evidentiary hearing.
In summary, the petitioner had ample time to amend his petition in written form.
This court will not consider any issue raised by an oral amendment unless the trial court
specifically states on the face of the record it is permissible.
This court will now address whether paragraphs B through E of the petition were
adequately addressed by the trial court.
The ground predicated upon the failure to instruct the jury has been raised in the
context of the trial court’s effectiveness within the meaning of the Sixth Amendment to the
United States Constitution and Article I, § 9 of the Tennessee Constitution. This issue has
also been raised in the context of the trial court’s “allowance of uncorroborated testimony
of the co-defendant to be disseminated to the jury.”
This ground has been waived. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)
(1990) (repealed 1995). The petitioner has failed to offer evidence rebutting the
presumption of waiver. Also, a post-conviction action cannot be used as a substitute for
an appeal. Swanson, 749 S.W.2d at 733; McClintock, 732 S.W.2d at 272; Rhoden, 816
S.W.2d at 63.
The petitioner asserts the post-conviction court failed to consider the convicting trial
12 court’s allowance of “uncorroborated accomplice testimony to be used to convict the
petitioner.” This issue has been previously discussed in this opinion.
Again, this issue has been waived. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)
(1990) (repealed 1995). The petitioner failed to offer evidence to rebut the presumption
of waiver. Furthermore, this proceeding cannot be used as a substitute for an appeal.
Swanson, 749 S.W.2d at 733; McClintock, 732 S.W.2d at 272; Rhoden, 816 S.W.2d at 63.
The petitioner asserts the post-conviction court failed to consider the error of the
convicting trial court in omitting an instruction regarding the necessity of corroborating the
testimony of an accomplice. This ground has been discussed previously.
As this court previously noted, the record is insufficient to permit a review of this
issue. The trial court’s charge has not been included in the record transmitted to this court.
Tenn. R. App. P. 24(b).
If the charge had been included in the record, this court would not consider this
ground. It has been waived. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2) (1990)
(repealed 1995). The petitioner has offered no evidence to rebut the presumption of
waiver. Also, a post-conviction action cannot be used as a substitute for an appeal.
Swanson, 749 S.W.2d at 733; McClintock, 732 S.W.2d at 272; Rhoden, 816 S.W.2d at 63.
The petitioner asserts he was denied due process of law because “the jury was not
informed of the plea deal of the co-defendant,” Henry S. Baker. The petitioner established
the plea agreement ultimately reached between the state and Baker. However, the record
is devoid of evidence as to when the agreement was reached.
13 During trial counsel’s cross-examination of Baker, the following colloquy occurred:
Q. Now, Mr. Craft asked you if you’ve been offered any deals or pleas or whatever in connection with this matter, did he not?
A. Yes, sir, he did.
Q. And I believe he asked you, other than something in exchange for your testimony, other than something that’s already been offered to you right? Did he ask you that?
Q. You’ve been made an offer to plead guilty in this case, have you not?
Q. Sir?
Q. How much time were you offered to plead guilty in this cause?
A. Six years.
As can be seen from the foregoing colloquy, the offer made by the state to Baker
was before the trial court and the jury. Of course, the trial court could have rejected the
plea agreement: Whether Baker should have been released on probation or under the
Community Corrections Act rested within the sound discretion of the trial court.
____________________________________________ JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________ JOHN H. PEAY, JUDGE
______________________________________ THOMAS T. WOODALL, JUDGE