State v. Marcellous Bond ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH SE SSION, 1998 FILED
December 30, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CC-00387
) Cecil Crowson, Jr.
Appe llate Court C lerk
Appellee, )
)
) MADISON COUNTY
VS. )
) HON. JOHN FRANKLIN MURCHISON
MARCELLOUS BOND, ) JUDGE
)
Appe llant. ) (Post-Conviction - Sale and Delivery
) of Cocaine)
FOR THE APPELLANT: FOR THE APPELLEE:
DANIEL J. TAYLOR JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
26th Judicial District
227 West Baltimore Street GEORGIA BLYTHE FELNER
Jackson, Tn 38301 Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
CLINTON J. MORGAN
Coun sel for the S tate
425 Fifth Avenu e North
Cordell Hull Building, Second Floor
Nashville, TN 37243-0493
JERRY WOO DALL
District Attorney General
NICK NICOLA
Assistant District Attorney
P. O. Box 2825
Jackson, TN 38301
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
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OPINION
On January 13, 1993 a Madison Coun ty jury foun d Appe llant, Marcellous
Bond guilty of the sale and delive ry of co caine and fin ed him $5,000.00 on each
count. The trial court sentenced Appellant on February 9, 1993 to an agreed
sentence of 30 years as a Range III, persistent offender. Appellant filed a Petition
for Post-Conviction Relief on June 11, 1993, alleging ineffective assistance of
counsel and failure of couns el to file an appeal. The trial court denied the petition
on August 9, 1994. Appellant appealed and this Court remanded the case to the
trial court for a hearing with additional evidence on the issues of (1) ineffective
assistance of counsel, and (2) whether Appellant waived his right to appeal the
jury verdict. The trial court held a hearing on November 22, 1996 and December
13, 1996, and denied the petition for post-conviction relief on the grounds of
ineffective counsel at trial, but granted Appellant a delayed appeal. Appellant filed
a motion for a new trial on January 9, 1997, which was amended on September
10, 1997. The motion was overruled after a hearing on September 12, 1997.
Appellant appe als from that decision from the trial court as well as from the trial
court’s denial of relief on the allegation of ineffective counsel. This Court, in the
interest of judicial ec omon y, sua sp onte, consolidated Appellant’s appeals on
July 8, 1998.
FACTS
On July 10, 1990, Tennessee Bureau of Investigation agent, Eric Patto n
purchased an “eigh t-ball” (or an e ighth of an ounce ) of cocain e from A ppellant.
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Agent Patton worked with a confidential informant, Michael Burgess, who
introduced Patton as Burgess’ cousin from Milwaukee. Agent Patton and Mr.
Burgess flagge d dow n App ellant a nd inq uired a bout p urcha sing a n eigh t-ball.
Appellant replied that he didn’t have it with him. Appellant told the p air to w ait
while he we nt to his mother’s house. Appellant returned, saying that it was going
to take longer, because he was going to pick up some m ore cocaine. Later Agent
Patton and Mr. Burgess saw Appellant when they went to the store. Appellant
waved them down and asked them to follow him to his mother’s house. Upon
arriving at a house, Appellant went inside, stayed about ten minutes, and came
out, bringin g Age nt Patt on tw o sm all bags containing a white powder substance.
Agent Patton paid Appellant the $250.00 which Appe llant had told him the
cocaine would c ost.
Agent Patton turned the bags into the Tennessee Bureau of Investigation
lab where it was tested and analyzed. The tests revealed that the substance was
cocaine.
I. SUFFICIENCY OF THE EVIDENCE
Appellant initially contends that the evidence is insufficient to support the
jury’s verdict, challenging the credibility of Michael Burgess and Agent E ric
Patton. When an appellant ch allenges the su fficiency of the eviden ce, this Court
is obliged to review that challenge according to certain well-settled principles . A
verdict of guilty by the jury, approved by the trial judge, accredits the testimony
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of the State’s witnesses and resolves all conflicts in the testim ony in favor of the
State. State v. Cazes, 875 S.W .2d 253 , 259 (Te nn. 199 4); State v. Harris, 839
S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a
presumption of inno cenc e, a jury verdic t remo ves th is presumption and replaces
it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,
on appeal, the burden of proof rests with Appellant to demonstrate the
insufficiency of the con victing evid ence. Id. On ap peal, “the [S ]tate is entitled to
the strong est leg itimate view of the evidence as well as all reasonable and
legitimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage,
571 S.W.2 d 832, 8 35 (Ten n. 1978)). Whe re the s ufficien cy of th e evid ence is
contested on appeal, the relevant ques tion for the reviewing court is whether any
rational trier of fact could have found the acc used guilty of eve ry element of the
offense beyond a re asona ble dou bt. Harris , 839 S.W .2d 54, 75 ; Jackson v.
Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L. Ed. 2d 560 (19 79). In
conducting our evaluation of the convicting evidence, this Court is precluded from
reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. C rim. App . 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not substitute its own inferences “for those
drawn by the trier of fact from circumstantial evide nce.” Id. at 779. Finally, the
Tennessee Rules o f Appella te Procedure, Rule 13(e) provides, “findings of guilt
in crimin al actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact beyond a
reasonable doubt.” See also State v. Mathews, 805 S.W.2d at 780. Questions
concerning the credibility of witnesses and the weight to be given to testimony
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and evidence are questions which must be resolved by the jury as the trier of
fact. This Court will not second guess the jury’s d etermin ations. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Mr. Burgess testified that he led
Agent Patton to Appellant and watched the exchange of money for drugs. Agent
Patton identified A ppellant a s the man fro m whom he pu rchased the drugs.
Tennessee Bureau technician Lisa Mayes testified that the substance purchased
by Agent Patton from Appellant was cocaine. The evidence presented was more
than su fficient. This iss ue is witho ut merit.
II. POST-CONVICTION RELIEF
Appellant further contends that the trial court erred in denying his petition
for post-conviction relief based upon the ineffective assistance of counsel at trial.
We disagree. In order for the petitioner to be granted relief on grounds of
ineffective counsel, he must establish that the advice given or the services
rendered were not within the range of competence dem ande d of atto rneys in
criminal cases and that, but for his counsel's deficient perfor man ce, the result of
the trial would h ave be en differen t. Baxter v. Rose, 523 S.W .2d 930 (Te nn.1975);
Strickland v. Washington, 466 U.S. 66 8, 104 S.C t. 2052, 80 L.Ed .2d 674 (198 4).
The firs t com pone nt of the test es tablish ed in Strickland is as follows:
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A convicte d defendant making a claim of ineffective
assistance must ide ntify the acts or omissions of counsel
that are alleged not to have been the res ult of rea sona ble
professional judgment. The court must then determine
whether, in light of all the circumstances, the identified
acts or omis sions were outside the wide range of
profes siona lly competent assistance. In making that
determination, the court should keep in mind that
coun sel's function, as elaborated in prevailing professional
norms, is to ma ke the adve rsarial te sting p roces s wor k in
the particu lar case.
Id., 466 U.S. at 690, 104 S. Ct. at 2066.
To meet the second prong of the Strickland test, there must be a
reaso nable probab ility that, but for counsel's unprofessional errors, "the result of
the proceeding would have been different." Id., 466 U.S. at 694-95, 104 S. Ct. at
2068. The "different" result nee d not be an acq uittal. A reas onable probab ility
of being found guilty of the lesser charge, or shorter sentence, satisfies the
second prong in Strickland. Chambers v. Armontrout, 907 F.2 d 825, 8 32 (8th
Cir.1990).
The ultimate standard is whether trial counsel's errors, if
any, were so serious as to deprive the petitioner of a trial
whose result is reliable. Unless each prong in Strickland
is establish ed, it cann ot be said that the conviction
resulted from a breakdown in the adversary process.
Proctor v . State, 868 S.W .2d 669, 673 (Tenn. Crim . App. 1992 ).
Appellant failed to establish by a preponderance of the evidence that the
services provided by his counsel fell below the range of competence demanded
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of attorneys in criminal cases. He further failed to prove that but for his a ttorney ’s
performance the results of the trial would have been different. Appellant
complained that his counsel met with him only three times before trial, that
counsel failed to properly file pre-trial motions, and that co unse l failed to com ply
with Rule 37 of the Rules of Criminal Procedure in neglecting to appeal
Appe llant’s case. At the hearing on this matter, Appellant did not present any
evidence that three meetings with counsel was insufficient in a case of this sort.
Moreov er, defense counsel estimated the number of meetings to be subs tantially
higher. Evidence presented also showed that the trial court heard and denied the
two pre-trial motion s filed by defense counsel. The fact that such m otions were
not placed in the record did not prejudice Appellant. Appellant does not allege
what other motions should have been filed. Finally, Appellant has received
appellate review of his conviction in this appe al. In light of the overwhelming
evidence against Appellant, we cannot find that any of the potential omissions by
coun sel, ev en if Ap pellan t’s allega tions a re acc epted as pre sente d, cou ld have
prejudiced Appellant. Without a showing of prejudice, Appella nt is not en titled to
post-conviction relief. Procter v. State, 868 S.W.2d 669, 672 (Tenn. Crim. App.
1992). T his issue is without m erit.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
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CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE 1
___________________________________
GARY R. WADE, JUDGE
1
The H onorab le Joe B. J ones d ied May 1, 1998, a nd did no t participate in th is opinion. W e
acknowledge his faithful service to the Tennessee Court of Criminal Appeals, both as our colleague and
as our Presiding Judge.
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