        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                       AUGUST SESSION, 1997                FILED
                                                      March 2, 1998
DANNY PATRICK,             )   C.C.A. NO. 02C01-9701-CC-00041
                           )                        Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
      Appe llant,          )
                           )
                           )   DYER COUNTY
VS.                        )
                           )   HON. JOE G. RILEY
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-Conviction)




FOR THE APPELLANT:             FOR THE APPELLEE:

VANEDDA PRINCE                 JOHN KNOX WALKUP
P. O. Box 26                   Attorney General and Reporter
Union City, TN 38281
                               DEB ORA H A. T ULLIS
                               Assistant Attorney General
                               450 James Robertson Parkway
                               Nashville, TN 37243

                               PHILIP BIVENS
                               District Attorney General

                               JAMES E. LANIER
                               Assistant District Attorney
                               P. O. Box E
                               Dyersburg, TN 38025



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION

         Appellant Danny Patrick appeals the trial court's denial of his petition for

post-conviction relief. He presents the following issues for review: (1) whether

the trial court erred in holding that Appellant received effective assistance of

coun sel; and (2) whether the trial court erred in concluding that its "re ason able

doub t" jury inst ruction was c onstitu tional.

         After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                              FACTUAL BACKGROUND

         Appellant wa s convicted by a jury in the Dyer C ounty Circu it Court of the

first degree murder of Michael Ross. He received a sentence of life imprisonment

with the Te nnes see D epartm ent of C orrect ion. O n Dec emb er 11, 1 991, th is

Court affirmed the conv iction and senten ce. State v. Danny Patrick, C.C.A. No.

02C01-9105-CC-00103, Dyer County (Tenn. Crim. App., Jackson, December 11,

1991).     In Appellant’s first petition for post-conviction relief,      the trial court

determined that Appellant's counsel failed to inform him of his right to appeal

from this Court to the Tennessee Supreme Court. On February 15, 1 995, th is

Court vacated and reinstated its earlier opinion of December 11, 19 91 to e nable

Appellant to file a d elayed appe al.       The Tennessee Supreme Court denied

Appellant's application for permission to appeal on July 3, 1995.

         On April 24, 1996, Appellant filed a motion to reope n his petition for post-

conviction relief. The trial court ap pointed couns el for App ellant. App ellant, with

the aid of cou nsel, filed an amend ed petition on Ju ly 2, 1996. The trial court

conducted an evidentiary hearing. After that hearing, the court concluded that

Appe llant's trial counsel performed well within the range of competence and that


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Appellant had not demonstrated the manner in which he was prejudiced by the

alleged deficiencies in counsel's performance. The court also determined that

the "reasonable doubt" jury instruction used at Appe llant's trial was cons titutiona l.

Finding that Ap pellan t's issue s had no m erit, the c ourt dis miss ed Ap pellan t's

petition for post-conviction relief on August 23, 1996.

       Specifically, Appellant alleges the following deficiencies in his counsel's

representation:

              (1) Fa ilure to in terview Bobb y McM ullin prio r to trial;
              (2) Failure to advis e App ellant th at it would be necessary for
              him to testify in ord er to pres ent proo f regardin g the victim's
              reputation for violence; and
              (3) Failure to adequately explain to Appellant his potential
              sentence and eligibility for parole.



                            POST-CONVICTION RELIEF

       Appellant contends that the trial court erred in de nying his p etition for po st-

conviction relief based upon Appellant's allega tion that he received the ineffective

assistance of counsel and that the jury charge on "rea sona ble do ubt" giv en at h is

trial was unco nstitutio nal.

       In post-conviction proceedings, the Appellant bears the burden of proving

the allegations raised in the petition by a preponderance of the evidence. Tidw ell

v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101

(Tenn. Crim. App. 1995).         Moreo ver, the trial court's findings of fact are

conclusive on appeal unless the evidenc e prepo nderate s agains t the judgm ent.

Tidw ell, 922 S.W .2d at 500 ; Cam pbell v. State, 904 S.W.2d 594, 595-96 (Tenn.

1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).




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                    EFFECTIVE ASSISTANCE OF COUNSEL

       Appe llant's first contention is that the trial court erred in finding that

Appe llant rec eived th e effec tive ass istanc e of co unse l.

       The Sixth Amendment provides in part, "In all criminal prosecutions, the

accused shall enjoy the righ t. . . to have the as sistan ce of c ouns el for his

defens e."    U.S. Const. amend. 6.           Similarly, the Tennessee Constitution

guarantees an accused "the right to be heard by hims elf and his couns el. . . "

Tenn. Const. a rt. I § 9. In Strickland v. Washington, the United States Supreme

Court articulated a two-prong test for courts to employ in evaluating claims of

ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The Tennessee Supreme Court adopted Strickland's two-p art test in

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began

its analysis by noting that "The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result."      Strickland, 104 S.Ct. at 2064.      When a convicted

defendant challenges the effective assistance of counsel in a post-conviction

proceeding, the Appellant bears the burden of establishing              (1) deficient

representation of counsel and (2) prejudice resulting from that deficiency.

Strickland, 104 S.C t. at 2064; Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim.

App. 1996). Appellant must prove that counsel's representation fell below an

objective standard of reaso nablen ess. Strickland, 104 S.C t. at 2064. Th is Court

is not requ ired to con sider the tw o prong s of Strickland in any particular orde r.

Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). "Moreover, if the

Appellant fails to establish one prong, a reviewing court need not consider the

other." Id. With reg ard to counsel's deficient performance, the proper m easure

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is that of reasonableness under prevailing professio nal norm s.              Id. (citing

Strickland, 104 S.C t. at 2065. Put differen tly, counsel's performance is required

to be "within the rang e of comp etence dem anded of a ttorneys in criminal cases."

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Harris , 947 S.W.2d at 163.

Respecting the prejudice prong of Strickland, the Appellant must establish that

"there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the procee ding would h ave been d ifferent. A reas onab le prob ability is

a probab ility sufficient to u nderm ine confid ence in th e outco me." Strickland, 104

S.Ct. at 2068.

       The Strickland Cour t emp hasiz ed tha t "Judic ial scru tiny of co unse l's

performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . .

requires that every e ffort be m ade to e liminate the distorting effects of h indsight,

to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to

evaluate the co nduc t from c ouns el's perspective at the time .'" Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 2065). T he mere

failure of a partic ular tac tic or stra tegy do es no t per se estab lish un reaso nable

representation. Id. at 369 . How ever, th is Cou rt will defer to counsel's tactical and

strategic choices only where those choices are informed ones predicated upon

adequ ate prepara tion. Goad, 938 S.W.2d at 369; Hellard v. S tate, 629 S.W.2d

4, 9 (Tenn. 1 982).

       Appe llant's first allegation of deficient performance on the part of the trial

counsel concerns the failure to conduct a pre-trial interview of the witness, M r.

Bobby McMullin. According to Appellant, if his lawyer had interviewed Mr. Bobby

McM ullin before Appellant's trial, the attorney would not have presented that

testimony during trial.      P aradoxic ally, in his brief, Appellant admits that

"McM ullin's testimony was not even necessary to prove [Appellant] was

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intoxicated beca use [a nothe r witnes s] had already testified as to that fa ct."

Through McMullin's testimony, defense counsel intended to dem onstrate that,

due to App ellant's intoxica tion, he did not poss ess the re quisite intent to com mit

first degree murder. However, Bobby McMullin did not testify as anticipated.

McM ullin testified that although Appellant had been drinking on the evening of the

incident, he did not appear to be intoxicated. At Appellant's post-conviction

hearing, Appellant's attorney, William Randolph, admitted that he would not have

called Mr. Mc Mullin to testify at tr ial if he had known that McMullin would say that

Appellant did not appear intoxicated on the evening of the offense. Mr. Randolph

explained that his rou tine practice is always to cond uct an interview with eve ry

prospective witness before trial. Mr. Randolph also stated that although he had

"no independent recollection" of interviewing Mr. McMullin prior to trial, he

believed that he ha d done so.

       It seem s unlike ly that Mr. Randolph would have departed from his standard

procedure of talking with witnesses before presenting their testimony at tria l.

Further, given Appellant's admission in his brief that McMullin's testimony was not

necessa ry to prove intoxication, the trial court properly concluded that Appellant

failed to demonstrate prejudice as a result of McM ullin's testimony, and failed to

establish that the outcome of the trial would have been different had McMullin not

testified. Th is allegation is without m erit.

       Respecting Appe llant's second alleged deficiency, Appellant testified at the

post-conviction hearing that he was not aware that his testimony would be

necessa ry in order to present evidence of Michael Ross' reputation for violence.

Appellant further testified that he would have te stified h ad he know n that th is

would be the on ly mean s of prese nting evide nce of the victim's history of

violence. Additionally, Appellant explain ed that on e reaso n for his refu sal to

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testify at his trial was that he felt that his trial was not fair. At the post-conviction

hearing, Mr. Randolph explained the dilemma concerning whether or not

Appe llant should testify.      On th e one h and, de fense co unsel w anted to

demo nstrate that Michael Ross was the true agg ressor. However, Mr. Randolph

had advised Appellant not to testify because of his lengthy criminal record.

Defense couns el opined that it "would have be en she ar stupidity to have put

[Appellant] on the stand." Mr. Randolph stated that he permitted Appellant to

make the ultimate choice a bout whethe r or not to testify. Finally, Mr. Randolph

testified that he attemp ted to get into the reco rd the victim's prior convictions but

was n ot suc cess ful.

       In its order denying Appellant's petition, the court emphasized that

Appellant had appro ximately fifteen prior conviction s. The reco rd buttresses Mr.

Randolph's testimony that he m ade a va lid tactical an d strateg ic decision to

advise Appella nt not to tes tify in his own behalf. Moreover, we cannot conclude

that Mr. Randolph's advice prejudiced the outcome of Appe llant's trial. T his

allegation is also witho ut merit.

       Finally, we find no m erit in Appellant's claim that Mr. Randolph neglected

to adeq uately e xplain A ppella nt's eligibility for parole and that this misinformation

affected Appella nt's decisio n to elect a jury trial instead of accepting the Sta te's

plea offer. In particular, Appellant asserts that he did not understand the precise

nature of a life sentence. Appellant testified at his post-conviction hearing that

trial counsel's investigator misinformed him that he could be paroled after serving

eight years of a life sente nce. Appellant further testified that "My understanding

was a life sentence was 13 yea rs" and that he tho ught that a life senten ce always

consisted of thirteen years. Mr. Randolph testified that he was certain that he

and Appella nt discus sed the amou nt of time th at Appe llant would serve with a life

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sentence. Mr. Randolph recalled that he stro ngly advis ed App ellant not to go to

trial and to accept the State's plea offer of a twenty-year sentence as a Range I

standard offen der in exchan ge for pleading guilty to second de gree mu rder.

       The trial cou rt prop erly con clude d that tria l counsel did not mislead

Appellant as to the n ature of a life senten ce. Mr. R andolp h placed on the trial

record the prosecution's plea offer of twenty years for second degree murder and

Appe llant's express refusal to a ccept tha t offer.     Although A ppella nt initially

accepted the State's plea offer, he later rejected it in open court at the hearin g in

which he was to plead guilty. Against the advice of his attorney, Appellant opted

to go to trial. T his allega tion is withou t merit.



 CONSTITUTIONALITY OF "REASONABLE DOUBT" JURY INSTRUCTION

       Lastly, Appellant contends that the "reasonable doubt" jury instruction

given at his trial con travenes his federa l and state constitutional due process

rights and tha t the trial court e rred in up holding th e constitutionality of the jury

charge. Specifically, he asserts that this jury instruction implies a lower standard

of proof than that required by due process. We disagree.

       At Appellant's trial, the court charged the jury as follows:

              Reaso nable doubt is that dou bt engend ered by an
              investigation of all the p roof 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 imag inary dou bt. Absolute certainty of
              guilt is not demanded by the law to convict of any criminal
              charge, but m oral certainty is re quired , and th is certa inty is
              required as to every proposition of proof req uisite to con stitute
              the offense.




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       Both the Tennessee Supreme Cour t and th is Cou rt previo usly ha ve uph eld

the constitutionality of a verba tim jury instruction on the m eanin g of "rea sona ble

doubt," finding such a jury charge to comport with both federal and state due

process protection s. Jame s David C arter v. State , 1997 WL 641595, slip op. at

6-7 (Tenn . 1997); Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn. Crim. App.

1994). The T enne ssee Supr eme Cour t held in State v. Nich ols that "the use of

the phrase `moral certainty' by itself is insufficient to invalidate an instruction on

the meaning of reasonable dou bt."           877 S .W.2 d 722, 7 34 (Te nn. 199 4).In

Nicho ls, the court deemed it essential that the language employed in a jury

charge clearly con vey "the jury's respon sibility to decide the verdict based on the

facts and the law." Id.

       The instruction given at Appellant's trial unambiguously conveyed the jury's

respon sibility and d id not vio late Ap pellan t's due process rights under either the

Fifth and Fo urteenth Ame ndme nts to the Un ited State s Cons titution or Artic le I,

§ 8 of the Tennessee Constitution. The trial court properly concluded that the

"reaso nable doub t" jury ch arge g iven at A ppella nt's trial w as co nstitutio nal.

       W e hold that the trial court properly dismissed Appellant's petition. The

judgment is affirmed.




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                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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