            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                                 AT KNOXVILLE
                                                                  September 30, 1999

                            JANUARY 1999 SESSION                  Cecil Crowson, Jr.
                                                                 Appellate Court Clerk




CHARLES GAYLOR,                 *    No. 03C01-9702-CR-00066

      Appellant,                *    CAMPBELL COUNTY

VS.                             *    Hon. James W itt, Judge

STATE OF TENNESSEE,             *    (Post-Conviction)

      Appellee.                 *




For Appellant:                       For Appellee:

Kenneth F. Irvine, Jr.               John Knox Walkup
Eldridge, Irvine & Hendricks, PLLC   Attorney General and Reporter
606 W. Main Street, Suite 350
Post Office Box 84                   Marvin E. Clements
Knoxville, TN 37901-0084             Assistant Attorney General
(on appeal)                          Criminal Justice Division
                                     425 Fifth Avenue North
Don Elledge, Attorney                Nashville, TN 37243
Shattuck & Elledge
101 S. Main Street, Suite 300        William Paul Phillips
Clinton, TN 37716                    District Attorney General
(at trial)                           P.O. Box 323
                                     Jacksboro, TN 37757




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The petitioner, Charles Gaylor, appeals the trial court's denial of post-

conviction relief. The following issues have been presented for review:

              (I) whether the trial court erred in finding that the petitioner received

the effective assistance of counsel at trial and on appeal; and

              (II) whether the jury instructions at trial on reasonable doubt violated

the petitioner's right to due process by the use of the phrases "moral certainty" and

"let the mind rest easily."



              We find no error and affirm the judgment of the trial court.



              In 1991, the petitioner was convicted of first degree murder and

conspiracy. The petitioner and several others, including Olen Edward Hutchison,

were implicated in the killing of Hugh Huddleston in an effort to collect some

$500,000 in insurance death benefits. Hutchison and the petitioner were tried

jointly. At trial, Hutchison received the death penalty and the conviction and

sentence were subsequently affirmed. State v. Hutchison, 898 S.W.2d 161 (Tenn.

1994). The petitioner received a life sentence for first degree murder and a

consecutive ten-year sentence for conspiracy. This court affirmed. State v. Gaylor,

862 S.W.2d 546 (Tenn. Crim. App. 1992). Later, our supreme court denied an

application for permission to appeal. On April 22, 1996, the petitioner filed this

petition for post-conviction relief alleging, among other things, ineffective assistance

of counsel and a violation of due process by the "moral certainty" instruction to the

jury. The petitioner was appointed counsel and the petition was amended twice.



              The trial court conducted an evidentiary hearing and at the conclusion

of the proof ruled, in pertinent part, as follows:


                                             2
                 Counsel cannot be ineffective for failing to object to
                 proper jury instructions . . . . Trial counsel filed for and
                 sought a bill of particulars, and such a bill of particulars
                 was provided. . . . Closing arguments of the State were
                 proper, supported by the evidence of the trial, or
                 reasonable inferences drawn thereon . . . . Trial counsel
                 made numerous objections to various portions of the
                 arguments and said counsel was not ineffective for failing
                 to preserve, or appeal, issues concerning the State's
                 closing argument . . . . Even if portions of the State's
                 argument were improper, such error would be harmless
                 in view of the overwhelming evidence of the petitioner's
                 guilt.

                 ....

                 The validity of the jury instruction concerning "reasonable
                 doubt" has been repeatedly upheld by the appellate
                 courts of Tennessee.



                                               I

                 The petitioner bases his claim of ineffective assistance of counsel on

the following:

                 (1) counsel's failure to challenge the jury instructions relating to

premeditation and deliberation at trial and on appeal; and

                 (2) counsel's failure to raise the issue of improper jury argument by

the state in the motion for new trial and on appeal.



                 When a petitioner seeks post-conviction relief on the basis of

ineffective assistance of counsel, he must first establish that the services rendered

or the advice given were below "the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Our supreme court described the

standard of review as follows:


                                               3
              Because a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice
              provides a sufficient basis to deny relief on the ineffective
              assistance claim. Indeed, a court need not address the
              components in any particular order or even address both
              if the defendant makes an insufficient showing of one
              component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective counsel,

the petitioner is not entitled to the benefit of hindsight, may not second-guess a

reasonably based trial strategy, and cannot criticize a sound, but unsuccessful,

tactical decision made during the course of the proceedings. Adkins v. State, 911

S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions

of counsel, however, applies only if the choices are made after adequate

preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.

1992).



              Under our statutory law, the petitioner bears the burden of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On

appeal, the findings of fact made by the trial court are conclusive and will not be

disturbed unless the evidence contained in the record preponderates against them.

Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on

the petitioner to show that the evidence preponderated against those findings.

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



              The petitioner's first argument is that his trial counsel should have

objected to the definitions the trial court provided the jury on premeditation and

deliberation. This trial, however, took place prior to the ruling in State v. Brown, 836

S.W.2d 530 (Tenn. 1992), the case upon which the petitioner bases his claim for

relief. See also State v. West, 844 S.W.2d 530 (Tenn. 1992). Brown has not been

given retroactive application and has not been a basis for post-conviction relief in


                                            4
the context of ineffective assistance of counsel. See, e.g., State v. Willie Bacon, Jr.,

No. 1164 (Tenn. Crim. App., at Knoxville, Aug. 4, 1992); State v. Edwin E.

Jesperson, No. 03C01-9602-CC-00058 (Tenn. Crim. App., at Knoxville, Jan. 28,

1997). Thus, the failure of trial counsel to challenge the instruction cannot be a

basis for relief.



               The petitioner also insists that trial counsel was ineffective for failing to

adequately argue the issue of improper closing argument by the state. The

petitioner particularly objects to the use of such terms as "hit man," "drug lord,"

"assassins," "godfather," "ringleader," and "ring of thugs." The prosecutor also

referred to the petitioner specifically by using the terms "vulture" and "Judas Goat,"

and, at one time, compared the petitioner to "a serpent who might beguile and

mislead you in a garden . . . ."



               Clearly, portions of the argument were intemperate. In context,

however, any error in the failure to exclude those parts of summation would not

have resulted in the reversal of the conviction or the grant of a new trial. Harrington

v. State, 385 S.W.2d 758 (Tenn. 1965). The factors utilized for determining the

presence of prosecutorial misconduct are set out in Judge v. State, 539 S.W.2d 340

(Tenn. Crim. App. 1965), as adopted by our supreme court in State v. Buck, 670

S.W.2d 600 (Tenn. 1984):

               (1) the conduct complained of, viewed in light of the
               facts and circumstances of the case;

               (2) the curative measures undertaken by the court and
               the prosecutor;

               (3) the intent of the prosecutor in making the improper
               statement;

               (4) the cumulative effect of the improper conduct and
               any other errors in the record; and


                                             5
              (5) the relative strength or weakness of the case.



              This was a particularly egregious case and the state's evidence

against the petitioner was strong. While the argument was overly metaphorical in

many respects, the state proved facts warranting the unfavorable references.

Because any deficiency in performance did not affect the results of the trial, the

petitioner is not entitled to relief on this ground. In summary, the evidence does not

preponderate against the trial court's finding that the petitioner received the effective

assistance of counsel.



                                            II

              Petitioner next contends that the jury instructions regarding reasonable

doubt entitle him to post-conviction relief. The instruction given was as follows:

              Reasonable doubt is that doubt engendered by an
              investigation of all the proof in the case and an inability,
              after such investigation, to let the mind rest easily as to
              the certainty of guilt. Reasonable doubt does not mean a
              captious, possible or imaginary doubt. Absolute certainty
              of guilt is not demanded by the law to convict of any
              criminal charge, but moral certainty is required and this
              certainty is required as to every proposition of proof
              requisite to constitute the offense.



              It is the inclusion of the phrases "moral certainty" and "let the mind rest

easily" that the petitioner claims is error. Specifically, he contends that the phrases

unconstitutionally lower the standard of proof required to sustain a criminal

conviction. Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990). He argues that

when a deficient reasonable doubt instruction is given, it is never harmless error.

Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078 (1993).



              In Cage, the United States Supreme Court held unconstitutional an


                                            6
instruction equating reasonable doubt with "actual substantial doubt" and "grave

uncertainty." The Court held that "[w]hen those statements are then considered with

the reference to 'moral certainty,' rather than evidentiary certainty, it becomes clear

that a reasonable juror could have interpreted the instruction to allow a finding of

guilt based on a degree of proof below that required by the Due Process Clause."

Id. at 41, 111 S. Ct. at 329.



              In Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239 (1994), the

Supreme Court considered the definition of reasonable doubt given in the trial of two

criminal defendants from two state courts. Jurors in the first case were told that they

must have "an abiding conviction, to a moral certainty, of the truth of the charge" in

order to meet the reasonable doubt standard. In the second case, the instruction

provided that a reasonable doubt is "an actual and substantial doubt" and that the

jury must have "an abiding conviction, to a moral certainty, of the guilt of the

accused." The Supreme Court concluded that while they would not "condone" the

use of the term "moral certainty," the instructions were distinguishable from those

given in Cage because the jurors would understand from the instructions that they

were to base their verdict on the evidence rather than other factors which could

allow conviction on a standard lower than reasonable doubt. Further, the Court

stated that "[i]nstructing the jurors that they must have an abiding conviction of the

defendant's guilt does much to alleviate any concerns that the phrase 'moral

certainty' might be misunderstood in the abstract." Id. at 19, 114 S. Ct. at 1250.



              Here, the petitioner relies upon these Supreme Court decisions in his

attack upon the use of the terms "moral certainty" and "let the mind rest easily" in

conjunction with the reasonable doubt standard. We are, however, not persuaded

that the instructions given in his trial suffered from the same infirmities as the


                                            7
instruction given in Cage. Moreover, the terminology to which the petitioner objects

has been specifically approved by this court and by the Tennessee Supreme Court.

State v. Nichols, 877 S.W.2d 722 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263

(Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364 (Tenn. Crim. App.

1994); State v. Hallock, 875 S.W.2d 285 Tenn. Crim App. 1993); State v. Blank, No.

01C01-9105-CC-0139, (Tenn. Crim. App., at Nashville, February 26, 1992). In fact,

no Tennessee court has interpreted Cage to require the absolute abandonment of

the use of the phrase "moral certainty" in jury instructions used to define reasonable

doubt.



              The trial court's use of the words "moral certainty," unconnected with

any other limiting or expanding adjectives, did not lessen the burden of the state to

show guilt beyond a reasonable doubt. Our supreme court has stated as follows:

              When considered in conjunction with an instruction that
              "[r]easonable doubt is that doubt engendered by an
              investigation of all the proof in the case and an inability,
              after such investigation, to let the mind rest easily upon
              the certainty of your verdict," we find that the instruction
              properly reflects the evidentiary certainty required by the
              "due process" clause of the federal constitution and the
              "law of the land" provision in our state constitution.

Nichols, 877 S.W.2d at 734. W e conclude that the instructions in the instant case

sufficiently described the standard for the degree of proof required to convict.



              Accordingly, the judgment of the trial court is affirmed.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_______________________________
James Curwood W itt, Jr., Judge

                                           8
________________________________
John K. Byers, Senior Judge




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