State v. Franklin Harris ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1998
FILED
FRANKLIN E. HARRIS, JR., ) February 18, 1998
) No. 02C01-9701-CR-00003
Appellant ) Cecil Crowson, Jr.
) SHELBY COUNTY Appellate C ourt Clerk
vs. )
) Hon. BERNIE WEINMAN, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Walker Gwinn Charles W. Burson
Asst. Public Defender Attorney General and Reporter
201 Poplar - Suite 2-01
Memphis, TN 38103 Deborah A. Tullis
Assistant Attorney General
A. C. Wharton Criminal Justice Division
District Public Defender 450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
P. T. Hoover
Asst. District Attorney General
Criminal Justice Complex
Suite 301, 201 Poplar Street
Memphis, TN 38103
OPINION FILED:
AFFIRMED PURSUANT TO RULE 20
David G. Hayes
Judge
OPINION
The appellant, Franklin E. Harris, Jr., appeals the denial of his petition for
post-conviction relief by the Shelby County Criminal Court. He is currently serving
an effective sentence of life plus twenty-five years in the Department of Correction
for his 1993 convictions for first degree murder and attempted first degree murder.
His convictions were affirmed on direct appeal to this court. See State v. Harris,
No. 02C01-9308-CR-00172 (Tenn. Crim. App. at Jackson, May 25, 1994), perm. to
appeal denied, (Tenn. Oct. 31, 1994). In November 1995, the appellant filed the
instant petition for post-conviction relief. After a hearing on the merits, the trial court
denied the post-conviction petition. In this appeal as of right, the appellant
challenges the trial court’s finding that trial counsel was effective. Additionally, he
contends that the reasonable doubt instruction containing the terms “moral certainty”
impermissibly lowered the “beyond a reasonable doubt” standard.
After a review of the issues, we affirm the decision of the trial court pursuant
to Rule 20, Tenn. Ct. Crim. App. R.
In support of his ineffective assistance of counsel claim, the appellant alleges
that trial counsel (1) failed to object to the reasonable doubt instruction given by the
court, (2) failed to request a jury instruction on corroboration of accomplice
testimony, and (3) prejudiced the appellant by announcing during opening
statements that the appellant would testify when in fact he did not testify. The trial
court correctly determined that the appellant’s claim involving counsel’s failure to
request an instruction on accomplice testimony had been previously determined on
direct appeal. Tenn. Code Ann. § 40-30-206(g) (1995 Supp.). See Harris, No.
02C01-9308-CR-00172. The fact that this issue is now couched in terms of
ineffective assistance of counsel is of no consequence. See Overton v. State, 874
2
S.W.2d 6, 12 (Tenn. 1994). An issue that has been previously determined on direct
appeal cannot support a petition for post-conviction relief and is, therefore,
excluded. See State v. Denton, 938 S.W.2d 373, 377 (Tenn. 1996); House v. State,
911 S.W.2d 705, 710 (Tenn. 1995), cert. denied, --U.S.--, 116 S.Ct. 1685 (1996).
Additionally, the trial court found that trial counsel’s statement regarding the
appellant’s intent to testify amounted to trial strategy and did not prejudice the
appellant.1 See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Finally, it is well
settled in this state that the challenged instruction on reasonable doubt containing
the language “moral certainty” passes constitutional muster. 2 State v. Nichols, 877
S.W.2d 722, 734 (Tenn. 1994); Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn.
Crim. App. 1994).
In a post-conviction proceeding filed after May 10, 1995, the appellant has
the burden of establishing his claims by clear and convincing evidence. Tenn. Code
Ann. § 40-30-210(f) (1995 Supp.). Moreover, the findings of fact of a trial court have
the weight of a jury verdict and are conclusive on appeal unless the evidence
preponderates against its judgment. Davis v. State, 912 S.W.2d 689, 697 (Tenn.
1995). In the present case, the appellant has failed to carry his burden of
establishing his claims. Moreover, we cannot conclude that the evidence
preponderates against the trial court’s findings of fact. As a result, we find no error
of law requiring reversal.
The trial court’s judgment is affirmed pursuant to Rule 20, Tenn. Ct. Crim.
App. R.
1
Trial counsel testified that he and the appellant had initially agreed that the appellant
wou ld tes tify at tria l beca use the S tate w as in p oss ess ion of state me nts m ade by the appe llant in
which he adm itted to the sh ootings. H oweve r, the State c hose n ot to introdu ce the s tatem ents
during its case-in-chief. Counsel and the appellant reexamined their previous position and agreed
that the appellant would not testify to prevent impeachment by these statements.
2
The fact that the appellant has couched this issue both in terms of ineffective assistance
of counsel and as a substantive claim is of no consequence.
3
____________________________________
DAVID G. HAYES, Judge
CONCUR:
____________________________________
JOE B. JONES, PRESIDING JUDGE
____________________________________
JOE G. RILEY, Judge
4