IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON OCTOBER SESSION, 1998
FILED REIKO NOLEN, ) October 16, 1998 ) No. 02C01-9711-CC-00441 Appellant ) Cecil Crowson, Jr. Appellate C ourt Clerk ) DYER COUNTY vs. ) ) Hon. J. STEVEN STAFFORD, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant: For the Appellee:
William K. Randolph John Knox Walkup 422 N. Church Street Attorney General and Reporter P. O. Box 611 Dyersburg, TN 38025-0611 Marvin E. Clements, Jr. Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Reiko Nolen, appeals the Dyer County Circuit Court’s
dismissal of his petition for post-conviction relief. The appellant collaterally attacks
his aggravated robbery conviction upon grounds of ineffective assistance of counsel.
Specifically, he contends that his trial counsel was deficient for failing to discredit the
State’s proof of “serious bodily injury,” an essential element of the convicting
offense.
After review of the record, we affirm the trial court’s denial of post-conviction
relief.
Analysis
In July 1995, the appellant was convicted of one count of especially
aggravated robbery1 and was sentenced to twenty years in the Department of
Correction.2 His conviction and sentence were affirmed on direct appeal to this
court. See State v. Nolan, No. 02C01-9601-CC-00008 (Tenn. Crim. App. at
Jackson, Aug. 2, 1996), perm. to appeal denied, (Tenn. Jan. 27, 1997). As a result
of this conviction, the appellant is currently confined at Northwest Correctional
Center in Tiptonville.
1 The appellant was also charged with attempted first degree murder. This charge was ultim ately d ism isse d by th e trial c ourt a s the jury fa iled to reac h an u nan imo us ve rdict a s to th is count.
2 The appellant’s conviction stems from an incident on September 17, 1994, in which the appellant, acting in concert with other unidentified persons, pursued the victim throughout Dyersburg, ultimately shooting the victim in the lower back and taking a beepe r and thirty-five dollars from his perso n. See State v. Nolan, No. 02C01-9601-CC-00008 (Tenn. Crim. App. at Jack son, Au g. 2, 1996 ), perm. to appeal denied, (Tenn . Jan. 27, 1 997). “T he victim was flow n to Memphis where he was hospitalized for three weeks. The bullet could not be removed. The victim unde rwen t exte nsive physic al the rapy to learn to wa lk ag ain. H e also lost c ontro l of his bladder.” Id.
2 On March 26, 1997, the appellant filed a petition for post-conviction relief.
This petition was subsequently amended on May 22, 1997. As grounds for relief,
the petition asserted various claims of ineffective assistance of trial counsel.3 On
June 6, 1997, following an evidentiary hearing, the trial court denied the appellant
relief. In dismissing the petition, the trial court found, specifically to the issue now
before this court, that:
The incident giving rise to the prosecution of this case involves the shooting of the victim. The victim was questioned about his injuries and their effect on him on pages 41-43 of the trial transcript. The victim stated that after he was shot, he was in bad pain and that he had to be airlifted to Memphis to the hospital. He stated that he was required to stay in the hospital in Memphis for approximately three weeks. He also testified that he still had the bullet in his back and that when he left the hospital he was not able to walk. He further stated that he was still in therapy and that during his therapy, he had to walk first using parallel bars and then crutches. At the time of the trial, the victim testified that he had only been off of crutches for approximately 1½ months. The victim further testified that as a result of the shooting, he was unable to control his bladder and that he was required to wear adult diapers. He called this a permanent problem.
The petitioner has presented no evidence as to how Davis [the appellant’s trial counsel] could rebut any of the victim’s testimony. It is clear that the evidence presented by the victim substantiates a claim for serious bodily injury. . . . This Court finds this issue to be without merit.
To succeed in a post-conviction claim of ineffectiveness, the appellant must
show, by clear and convicting evidence, Tenn. Code Ann. § 40-30-210(f) (1996
3 Although the trial court acknowledged that the appellant had previously raised the issue of ineffec tive assista nce of c ounse l on direct ap peal, see Nolan, No. 02C01-9601-CC-00008 (finding the appellant’s claim that counsel was ineffective for opening the door regarding a prior incident with the victim without merit), the court proceeded to address additional allegations of ineffectiveness raised for the first time in the post-conviction petition. However, ineffective assistance of counsel is generally a "single ground for relief" under the post-conviction statute. Cone v. State, 927 S.W .2d 579, 5 81-82 (T enn. Cr im. Ap p.1995 ), perm. to appeal denied, (Tenn .1996), cert. denied, --- U.S. ----, 117 S.Ct. 309 (1996). "[T]he fact that such violation may be proved by multiple acts or omissions does not change the fact that there remains only one ground for relief." McC ray v. State , No 01C01-9108-CR-00255 (Tenn. Crim. App. at Nashville, Sept. 11, 1992). A ground for relief 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- 206 (f)(1 996 Sup p.). A petitio ner m ay not re-litig ate p revio usly de term ined g roun ds fo r relief sim ply by adding f actual ba sis for an ineffective assistan ce of co unsel cla im. Cone, 927 S.W.2d at 581-82. The appellant offers no explanation as to why these additional alleged acts and omissions were not raised when the issue of counsel's effectiveness was litigated on direct app eal. T hus , the a ppe llant’s claim s in th is app eal ar e wa ived b eca use they h ave b een prev ious ly determined. Notwithstanding, we elect to review the claim presented sub judice as the trial court resolved the issue on its m erits.
3 Supp.), that the services rendered by trial counsel were deficient and that, but for
the deficient performance, the results of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 2064 (1984). In
determining whether the appellant received effective assistance of counsel, this
court must remain mindful that it is not our function to second guess trial counsel's
tactical and strategic choices on matters of defense, unless these choices are made
without knowledge of the relevant facts or the law applicable to the issue. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn.1982); State v. Swanson, 680 S.W.2d 487, 490
(Tenn. Crim. App.1984).
The proof is overwhelming that the victim suffered “serious bodily injury”
within the purview of the statute. See Tenn. Code Ann.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON OCTOBER SESSION, 1998
FILED REIKO NOLEN, ) October 16, 1998 ) No. 02C01-9711-CC-00441 Appellant ) Cecil Crowson, Jr. Appellate C ourt Clerk ) DYER COUNTY vs. ) ) Hon. J. STEVEN STAFFORD, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant: For the Appellee:
William K. Randolph John Knox Walkup 422 N. Church Street Attorney General and Reporter P. O. Box 611 Dyersburg, TN 38025-0611 Marvin E. Clements, Jr. Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Reiko Nolen, appeals the Dyer County Circuit Court’s
dismissal of his petition for post-conviction relief. The appellant collaterally attacks
his aggravated robbery conviction upon grounds of ineffective assistance of counsel.
Specifically, he contends that his trial counsel was deficient for failing to discredit the
State’s proof of “serious bodily injury,” an essential element of the convicting
offense.
After review of the record, we affirm the trial court’s denial of post-conviction
relief.
Analysis
In July 1995, the appellant was convicted of one count of especially
aggravated robbery1 and was sentenced to twenty years in the Department of
Correction.2 His conviction and sentence were affirmed on direct appeal to this
court. See State v. Nolan, No. 02C01-9601-CC-00008 (Tenn. Crim. App. at
Jackson, Aug. 2, 1996), perm. to appeal denied, (Tenn. Jan. 27, 1997). As a result
of this conviction, the appellant is currently confined at Northwest Correctional
Center in Tiptonville.
1 The appellant was also charged with attempted first degree murder. This charge was ultim ately d ism isse d by th e trial c ourt a s the jury fa iled to reac h an u nan imo us ve rdict a s to th is count.
2 The appellant’s conviction stems from an incident on September 17, 1994, in which the appellant, acting in concert with other unidentified persons, pursued the victim throughout Dyersburg, ultimately shooting the victim in the lower back and taking a beepe r and thirty-five dollars from his perso n. See State v. Nolan, No. 02C01-9601-CC-00008 (Tenn. Crim. App. at Jack son, Au g. 2, 1996 ), perm. to appeal denied, (Tenn . Jan. 27, 1 997). “T he victim was flow n to Memphis where he was hospitalized for three weeks. The bullet could not be removed. The victim unde rwen t exte nsive physic al the rapy to learn to wa lk ag ain. H e also lost c ontro l of his bladder.” Id.
2 On March 26, 1997, the appellant filed a petition for post-conviction relief.
This petition was subsequently amended on May 22, 1997. As grounds for relief,
the petition asserted various claims of ineffective assistance of trial counsel.3 On
June 6, 1997, following an evidentiary hearing, the trial court denied the appellant
relief. In dismissing the petition, the trial court found, specifically to the issue now
before this court, that:
The incident giving rise to the prosecution of this case involves the shooting of the victim. The victim was questioned about his injuries and their effect on him on pages 41-43 of the trial transcript. The victim stated that after he was shot, he was in bad pain and that he had to be airlifted to Memphis to the hospital. He stated that he was required to stay in the hospital in Memphis for approximately three weeks. He also testified that he still had the bullet in his back and that when he left the hospital he was not able to walk. He further stated that he was still in therapy and that during his therapy, he had to walk first using parallel bars and then crutches. At the time of the trial, the victim testified that he had only been off of crutches for approximately 1½ months. The victim further testified that as a result of the shooting, he was unable to control his bladder and that he was required to wear adult diapers. He called this a permanent problem.
The petitioner has presented no evidence as to how Davis [the appellant’s trial counsel] could rebut any of the victim’s testimony. It is clear that the evidence presented by the victim substantiates a claim for serious bodily injury. . . . This Court finds this issue to be without merit.
To succeed in a post-conviction claim of ineffectiveness, the appellant must
show, by clear and convicting evidence, Tenn. Code Ann. § 40-30-210(f) (1996
3 Although the trial court acknowledged that the appellant had previously raised the issue of ineffec tive assista nce of c ounse l on direct ap peal, see Nolan, No. 02C01-9601-CC-00008 (finding the appellant’s claim that counsel was ineffective for opening the door regarding a prior incident with the victim without merit), the court proceeded to address additional allegations of ineffectiveness raised for the first time in the post-conviction petition. However, ineffective assistance of counsel is generally a "single ground for relief" under the post-conviction statute. Cone v. State, 927 S.W .2d 579, 5 81-82 (T enn. Cr im. Ap p.1995 ), perm. to appeal denied, (Tenn .1996), cert. denied, --- U.S. ----, 117 S.Ct. 309 (1996). "[T]he fact that such violation may be proved by multiple acts or omissions does not change the fact that there remains only one ground for relief." McC ray v. State , No 01C01-9108-CR-00255 (Tenn. Crim. App. at Nashville, Sept. 11, 1992). A ground for relief 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- 206 (f)(1 996 Sup p.). A petitio ner m ay not re-litig ate p revio usly de term ined g roun ds fo r relief sim ply by adding f actual ba sis for an ineffective assistan ce of co unsel cla im. Cone, 927 S.W.2d at 581-82. The appellant offers no explanation as to why these additional alleged acts and omissions were not raised when the issue of counsel's effectiveness was litigated on direct app eal. T hus , the a ppe llant’s claim s in th is app eal ar e wa ived b eca use they h ave b een prev ious ly determined. Notwithstanding, we elect to review the claim presented sub judice as the trial court resolved the issue on its m erits.
3 Supp.), that the services rendered by trial counsel were deficient and that, but for
the deficient performance, the results of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 2064 (1984). In
determining whether the appellant received effective assistance of counsel, this
court must remain mindful that it is not our function to second guess trial counsel's
tactical and strategic choices on matters of defense, unless these choices are made
without knowledge of the relevant facts or the law applicable to the issue. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn.1982); State v. Swanson, 680 S.W.2d 487, 490
(Tenn. Crim. App.1984).
The proof is overwhelming that the victim suffered “serious bodily injury”
within the purview of the statute. See Tenn. Code Ann. § 39-11-106(a)(33) (1991). 4
Contrary to the appellant’s argument, even considering information possessed by
trial counsel that the victim “could tell when [he] needed to go [to the bathroom]” and
that he could move his legs but not his toes, we fail to see how this information
would have negated the seriousness of the injuries sustained by the victim. Indeed,
it is difficult to conceive how any cross-examination by trial counsel relating to the
victim’s injuries could have changed the facts before the jury or the ultimate
outcome of this trial. Clearly, the appellant has failed to carry his burden of
establishing his claims. Additionally, we cannot conclude that the evidence
preponderates against the trial court’s findings of fact. See Davis v. State, 912
S.W.2d 689, 697 (Tenn. 1995).
As a result, we find no error of law requiring reversal. The judgment of the
trial court dismissing the appellant’s petition for post-conviction relief is affirmed.
4 "Serious bodily injury” means bodily injury which involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or sub stantial impairment of a function of a bod ily mem ber, orga n or m ental facu lty.”
4 ____________________________________ DAVID G. HAYES, Judge
CONCUR:
____________________________________ JOHN H. PEAY, Judge
____________________________________ L. T. LAFFERTY, Senior Judge