    1                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

    2                                   AT KNOXVILLE                  FILED
    3                                  MAY 1997 SESSION
                                                                        APRIL 23, 1998
    4
                                                                      Cecil Crowson, Jr.
                                                                      Appellate C ourt Clerk
    5   WILLIE BACON, JR.,               )
    6                                    )
    7                Appellant,          )    No. 03C01-9605-CR-00203
    8                                    )
    9                                    )    Hamilton County
1   0   v.                               )
1   1                                    )     Honorable Douglas A. Meyer, Judge
1   2                                    )
1   3   STATE OF TENNESSEE,              )     (Post-Conviction)
1   4                                    )
1   5                Appellee.           )
1   6
1   7
1   8   For the Appellant:                    For the Appellee:
1   9
2   0   Ardena J. Garth                       Charles W. Burson
2   1   District Public Defender              Attorney General of Tennessee
2   2      and                                       and
2   3   Donna Robinson Miller                 Michael J. Fahey, II
2   4   Assistant Public Defender             Assistant Attorney General of Tennessee
2   5   Suite 300, 701 Cherry Street          450 James Robertson Parkway
2   6   Chattanooga, TN 37402                 Nashville, TN 37243-0493
2   7
2   8                                         William H. Cox, III
2   9                                         District Attorney General
3   0                                                 and
3   1                                         C. Leland Davis
3   2                                         Assistant District Attorney General
3   3                                         City-County Building
3   4                                         Chattanooga, TN 37402
3   5
3   6
3   7
3   8
3   9
4   0
4   1   OPINION FILED:____________________
4   2
4   3
4   4   AFFIRMED
4   5
4   6   Joseph M. Tipton
4   7   Judge
4   8
4   9
5   0
5   1
5   2
5   3
5   4
5 5                                           OPINION

5 6

5 7                 The petitioner, Willie Bacon, Jr., appeals as of right from the Hamilton

5 8   County Criminal Court’s denial of post-conviction relief after an evidentiary hearing. He

5 9   contends that he is entitled to post-conviction relief because the reasonable doubt and

6 0   malice instructions given at his trial violated his due process and equal protection rights

6 1   and because he received the ineffective assistance of counsel. We disagree and affirm

6 2   the judgment of the trial court.

6 3

6 4                 In 1989, the petitioner was convicted of first degree murder and received

6 5   a sentence of life imprisonment. This court affirmed his conviction. State v. Willie

6 6   Bacon, Jr., No. 1164, Hamilton County (Tenn. Crim. App. Aug. 4, 1992), app. denied

6 7   (Tenn. Dec. 14, 1992). The petitioner filed the present petition for post-conviction relief

6 8   on May 13, 1994.

6 9

7 0                 A transcript of the petitioner’s trial is the only evidence that was introduced

7 1   at the evidentiary hearing on his post-conviction petition. At the hearing, the petitioner’s

7 2   attorney argued that the malice and reasonable doubt jury instructions given at the

7 3   petitioner’s trial violated his constitutional rights. She also argued that the petitioner

7 4   received the ineffective assistance of counsel because his trial counsel failed to object

7 5   to the state’s closing argument, failed to object to the reasonable doubt and malice jury

7 6   instructions, and failed to challenge the sufficiency of the convicting evidence on

7 7   appeal.

7 8

7 9                 In its order denying the petition, the trial court stated that the reasonable

8 0   doubt and malice jury instructions did not violate the petitioner’s constitutional rights and

8 1   that the petitioner did not receive the ineffective assistance of counsel. Specifically, the

8 2   court found that the petitioner’s counsel made a tactical decision not to object during



                                                    2
     8 3       the state’s closing argument. The court also stated that although the petitioner’s

     8 4       counsel did not challenge the sufficiency of the convicting evidence, this court

     8 5       examined the convicting evidence and concluded that the evidence sustained the

     8 6       conviction.

     8 7

     8 8                            I. REASONABLE DOUBT JURY INSTRUCTION

     8 9                     The petitioner contends that he is entitled to post-conviction relief

     9 0       because the use of the term “moral certainty” in the reasonable doubt jury instruction

     9 1       given at his trial allowed the jury to convict him based on a lower standard of proof than

     9 2       is constitutionally required. We disagree.

     9 3

     9 4                     The following instruction was given at the petitioner’s trial:

     9    5                  Reasonable doubt is not that doubt that may arise from
     9    6                  possibility, but is that doubt engendered by an investigation of
      9    7                 all the proof in the case and an inability, after such
      9    8                 investigation, to let the mind rest easily upon certainty of guilt.
      9    9                 Absolute certainty of guilt is not demanded by the law to
 1    0    0                 convict of a criminal charge, but moral certainty is required as
 1    0    1                 to every proposition of proof requisite to constitute the offense.
 1    0    2
1    0    3    This is a correct statement of the burden of proof for criminal trials in Tennessee. See

1 0 4          Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266

1 0 5          (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App.

1 0 6          1994). Thus, the instruction did not violate the petitioner’s constitutional rights.

1 0 7

1 0 8                                       II. MALICE JURY INSTRUCTION

1 0 9                        Next, the petitioner contends that the trial court's jury instruction regarding

1 1 0          malice violated his due process rights. See Sandstrom v. Montana, 442 U.S. 510, 99

1 1 1          S. Ct. 2450 (1979); State v. Bolin, 678 S.W.2d 40, 45 (Tenn. 1984). The trial court

1 1 2          gave the following instruction at the petitioner’s trial:

1    1    3                         Malice is an intent to do injury to another, a design
1    1    4                  formed in the mind of doing mischief to another.
1    1    5                         Malice may be express or implied. Express malice is
1    1    6                  actual malice against the party slain and exists where a person

                                                              3
1    1    7                  actually contemplates the injury or wrong he inflicts. Implied
1    1    8                  malice is malice not against the party slain, but malice in
1    1    9                  general, or that condition of the mind which indicates a wicked,
1    2    0                  depraved, and malignant spirit, and a heart regardless of social
1    2    1                  duty and fatally bent on mischief. Implied malice may be found
1    2    2                  to exist where the wrongdoer did not intend to slay the person
1    2    3                  killed but death resulted from a consciously unlawful act done
1    2    4                  intentionally and with knowledge on the wrongdoer’s part that
1    2    5                  the act was directly perilous to human life. In this event, there
1    2    6                  is implied such a high degree of conscious and willful
1    2    7                  recklessness as to amount to that malignity of heart
1    2    8                  constituting malice.
1    2    9
1    3    0                         As with other issues, the question of malice may be
1    3    1                  decided from direct or circumstantial evidence, or both. It is for
1    3    2                  the jury to decide under all the facts and circumstances of the
1    3    3                  case whether malice was present in the slaying.
1    3    4
1    3    5                          If a deadly weapon is handled in a manner so as to
 1    3    6                 make the killing a natural or probable result of such conduct,
 1    3    7                 the jury may infer malice sufficient to support a conviction of
 1    3    8                 murder in the first degree. But, again, this inference may be
 1    3    9                 rebutted by either direct or circumstantial evidence or by both
 1    4    0                 regardless of whether the same be offered by the defendant or
 1    4    1                 exists in the evidence of the state. . . .
 1    4    2
 1    4    3                        Malice cannot be inferred from deadly intent only,
 1    4    4                 because the deadly intent may be justifiable under the law, as
 1    4    5                 where one willfully kills another to save his own life or to save
 1    4    6                 himself from great bodily harm and the danger is imminent and
 1    4    7                 immediate, or if it were sudden and upon reasonable
 1    4    8                 provocation the killing might or might not be manslaughter, but
 1    4    9                 it would not be murder.
 1    5    0
 1    5    1                        You are reminded that the state always has the burden
 1    5    2                 of proving every element of the crime charged beyond a
 1    5    3                 reasonable doubt. A permissible inference may or may not be
 1    5    4                 drawn from an elemental fact from proof by the state of a basic
 1    5    5                 fact. However, all inferences permitted to be drawn may be
 1    5    6                 rebutted. Such permissive inference does not place any
 1    5    7                 burden of proof of any kind upon the defendant.
 1    5    8
 1    5    9

1 6 0                        In Sandstrom, the Supreme Court held that an instruction which effectively

1 6 1          tells the jury that they are to presume the existence of malice, when such is an element

1 6 2          of the offense, impermissibly shifts the burden of proof to the defendant. Sandstrom,

1 6 3          442 U.S. at 524, 99 S. Ct. at 2459. However, the trial court in this case did not instruct

1 6 4          the jury to presume the existence of malice. Taken as a whole, the instruction created

1 6 5          a permissive inference. See Bolin, 678 S.W.2d at 42-45; see also State v. James



                                                             4
1 6 6   Blanton, No. 01C01-9307-CC-00218, Cheatham County (Tenn. Crim. App. Apr. 30,

1 6 7   1996), app. pending (holding that a similar instruction did not violate Sandstrom). Thus,

1 6 8   the instruction did not violate the petitioner’s constitutional rights.

1 6 9

1 7 0                           III. INEFFECTIVE ASSISTANCE OF COUNSEL

1 7 1                   Finally, the petitioner contends that he is entitled to post-conviction relief

1 7 2   because he received the ineffective assistance of counsel. The petitioner contends that

1 7 3   his counsel was ineffective for failing to object to the state’s closing argument, failing to

1 7 4   object to the malice and reasonable doubt instructions that were given at his trial, and

1 7 5   failing to challenge the sufficiency of the convicting evidence during his direct appeal.

1 7 6   The state counters that the petitioner has failed to demonstrate that his counsel was

1 7 7   deficient and that he suffered any prejudice from the alleged deficiencies.

1 7 8

1 7 9                   The burden was on the petitioner in the trial court to prove his allegations

1 8 0   that would entitle him to relief by a preponderance of the evidence.1 Brooks v. State,

1 8 1   756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial

1 8 2   court’s findings unless we conclude that the evidence preponderates against those

1 8 3   findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,

1 8 4   the petitioner has the burden of illustrating how the evidence preponderates against the

1 8 5   judgment entered. Id.

1 8 6

1 8 7                   Under the Sixth Amendment, when a claim of ineffective assistance of

1 8 8   counsel is made, the burden is upon the petitioner to show (1) that counsel's

1 8 9   performance was deficient and (2) that the deficiency was prejudicial in terms of

1 9 0   rendering a reasonable probability that the result of the trial was unreliable or the

1 9 1   proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

1 9 2   Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,

                1
                   For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f
        proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).

                                                              5
1 9 3       842-44 (1993). Our supreme court has also applied this standard to the right to counsel

1 9 4       under Article I, Section 9 of the Tennessee Constitution, State v. Melson, 772 S.W.2d

1 9 5       417, 419 n.2 (Tenn. 1989), and to the right to appellate counsel under the Fourteenth

1 9 6       Amendment. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); see Evitts v.

1 9 7       Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985).

1 9 8

1 9 9                     The petitioner contends that his attorney was deficient for failing to object

2 0 0       to the following remarks the prosecuting attorney made during the state’s closing

2 0 1       argument:

2   0   2                          Mr. Bacon would have you believe that he simply
2   0   3                 forgot, I guess. I guess it’s what you might term selective
2   0   4                 amnesia. “Oh, yeah, I remember when he assaulted me.
2   0   5                 Oh, yeah, I remember falling through the door. Oh, yeah, I
2   0   6                 remember dropping the knife. Oh, yeah, I remember
2   0   7                 running away. Oh, yeah, I remember getting in the car.”
2   0   8                 Whoa, wait a minute. What about the 35 stab wounds? Oh,
2   0   9                 is this the defense? Yes, I committed first degree murder,
2   1   0                 but now I’ve forgotten about it. Okay, so you committed first
2   1   1                 degree murder and you’ve forgotten about it.

2 1 2       The trial court found that the petitioner’s attorney acted within the range of competence

2 1 3       demanded of defense attorneys when he made a tactical decision not to object to these

2 1 4       remarks. We agree with the trial court’s assessment. The petitioner has failed to

2 1 5       demonstrate that these remarks were improper or that he was prejudiced by them.

2 1 6

2 1 7                     We also disagree with the petitioner’s contentions that his counsel was

2 1 8       ineffective for failing to object to the reasonable doubt and malice jury instructions that

2 1 9       were given at his trial. As previously discussed, the instructions given at the petitioner’s

2 2 0       trial were proper.

2 2 1                     Finally, the petitioner contends that his counsel was ineffective for failing

2 2 2       to challenge the sufficiency of the convicting evidence during his direct appeal. The

2 2 3       state counters that the petitioner’s counsel acted competently when he made a tactical

2 2 4       decision not to challenge the sufficiency of the evidence. The state also argues that the




                                                         6
2 2 5   petitioner has failed to show that he was prejudiced by his counsel’s failure to present

2 2 6   the sufficiency of the evidence on appeal.

2 2 7

2 2 8                 We agree with the state that the petitioner has failed to show that he was

2 2 9   prejudiced by his counsel’s failure to challenge the sufficiency of the convicting

2 3 0   evidence. When viewed in the light most favorable to the state, see State v. Cabbage,

2 3 1   571 S.W.2d 832, 835 (Tenn. 1978), the proof at trial showed that the petitioner asked a

2 3 2   friend to drive him to the victim’s home. Before they left for the victim’s house, the

2 3 3   petitioner changed clothes. The petitioner “tucked” his clothes in a manner that

2 3 4   indicated that he had something concealed under his clothes. After arriving at the

2 3 5   victim’s house, the petitioner entered the house, where he stabbed the victim during a

2 3 6   struggle. The petitioner continued to stab the victim after the victim exited the house.

2 3 7   The petitioner stabbed the victim a total of thirty-five times, killing him. The proof at trial

2 3 8   indicated that the petitioner killed the victim as punishment or revenge related to an

2 3 9   unsuccessful drug transaction.

2 4 0

2 4 1                 Based on the proof presented at trial, the jury was justified in concluding

2 4 2   that the petitioner was guilty of first degree murder. Thus, the petitioner has failed to

2 4 3   demonstrate that his attorney was deficient for failing to challenge the sufficiency of the

2 4 4   evidence on appeal and has failed to demonstrate that he suffered any prejudice from

2 4 5   his attorney’s decision not to raise the issue.

2 4 6

2 4 7




                                                      7
2 4 8                     In consideration of the foregoing and the record as a whole, we affirm the

2 4 9       judgment of the trial court.

2   5   0
2   5   1                                                         Joseph M. Tipton, Judge
2   5   2
2   5   3
2   5   4   CONCUR:
2   5   5
2   5   6
2   5   7
2   5   8
2   5   9   Joe B. Jones, Presiding Judge
2   6   0
2   6   1
2   6   2
2   6   3
2   6   4
2   6   5   Curwood Witt, Judge
2   6   6




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