            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1998         FILED
                                                     July 2, 1998

                                                Cecil W. Crowson
JERRY DWAINE CAMMUSE,       )
                                              Appellate Court Clerk
                            )    No. 01C01-9709-CR-00440
       Appellant            )
                            )    DAVIDSON COUNTY
vs.                         )
                            )    Hon. J. Randall Wyatt, Jr., Judge
STATE OF TENNESSEE,         )
                            )    (POST-CONVICTION)
       Appellee             )



For the Appellant:               For the Appellee:

Terry J. Canady                  John Knox Walkup
Attorney for Appellant           Attorney General and Reporter
211 Printer's Alley Bldg.
Suite 400                        Elizabeth B. Marney
Nashville, TN 37201              Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 Victor S. (Torry) Johnson III
                                 District Attorney General

                                 Rosemary Sexton
                                 Asst. District Attorney General
                                 Washington Square, Suite 500
                                 222-2nd Avenue North
                                 Nashville, TN 37201



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                 OPINION



        The appellant, Jerry Dwaine Cammuse, appeals the dismissal of his petition for

post-conviction relief by the Davidson County Criminal Court. On November 30, 1990,

a jury found the appellant guilty of twenty-two felonies, resulting in an effective

sentence of 150 years imprisonment.1 His convictions were affirmed on direct appeal

to this court. See State v. Cammuse, No. 01C01-9107-CR-00216 (Tenn. Crim. App.

at Nashville, Apr. 29, 1992), perm. to appeal denied, (Tenn. Sept. 14, 1992).                               The

appellant filed this pro se petition for post-conviction relief in April 1995. In October

1995, following the appointment of counsel, the petition was amended. An evidentiary

hearing in this cause was held on April 7, 1997, and the appellant’s petition was

dismissed by the trial court on May 6, 1997.                  The appellant appeals this dismissal

alleging as error (1) that he was denied the effective assistance of counsel and (2)

prosecutorial misconduct.




                                                  Analysis



A. Ineffective Assistance of Counsel

        When a claim of ineffective assistance of counsel is raised, the appellant bears

the burden of showing that (a) the services rendered by trial counsel were deficient and

(b) the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064 (1984); Cooper v. State, 849 S.W.2d 744, 746 (Tenn.

1993). With respect to deficient performance, the court must decide whether or not

counsel’s performance was within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To satisfy the



        1
         The appellant’s multiple convictions stem from his unlawful sexual penetration and
sexual contact of his three daughters, ages 10, 12 and 14. The convictions include two counts of
sexua l battery, four c ounts o f aggrav ated se xual batte ry, two coun ts of rape and fou rteen co unts
of aggravated rape.

                                                    2
prejudice prong of the Strickland test, the appellant must show a reasonable probability

that, but for counsel’s ineffective performance, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. On appellate review,

the lower court’s findings are conclusive absent a finding that evidence preponderates

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

denied, 441 U.S. 947, 99 S.Ct. 2170 (1979).



        The appellant alleges that he received the ineffective assistance of counsel both

at trial and on appeal. First, he contends that his original appointed attorney, Terry

McConnell,2 after filing a motion to suppress, failed to call two witnesses at the hearing

who would have testified that, “Mr. Cammuse had consumed alcohol all day and

worked all night with only a couple hours sleep” and was in no “mental state” to give a

statement to the police. This argument fails for two reasons. There is no proof in this

record that two witnesses existed who would have supported this allegation.3                                  See

Black v. State, 794 S.W.2d 752, 757 (Tenn.Crim.App. 1990). Bare allegations are

insufficient to support proof of the claim. The petitioner in a post-conviction proceeding

bears the burden of proving, by a preponderance of the evidence, the allegation in his

petition. Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995).4 The appellant has failed

to meet this burden. Moreover, the issue of the voluntariness of the appellant’s

statement to the police has been previously determined. Issues that have been

previously determined on direct appeal cannot support a petition for post-conviction

relief and are, therefore, excluded.                      See Tenn. Code Ann. § 40-30-111, -112

(a)(1990)(repealed 1995); State v. Denton, 938 S.W.2d 373, 377 (Tenn. 1996). On

direct appeal, the appellant argued that his statement to the police was involuntary.

Cammuse, No. 01C01-9107-CR-00216. This court, on appeal, accredited the findings


        2
            Ter ry Mc Con nell wa s per mitte d to w ithdra w as coun sel pr ior to tr ial.

        3
         At the hea ring, post-c onviction c ounse l advised th e court tha t he had a ttemp ted to loca te
the two witnesses but they could not be found.

        4
        The appellant’s petition was filed in April 1995. Accordingly, the appellant’s burden of
proof was by a “preponderance of the evidence” as the 1995 Post-Conviction Procedure Act
became effective May 10, 1995. Tenn. Code Ann. § 40-30-105 (repealed 1995).

                                                          3
of the trial court concluding that, “the appellant’s statement was voluntary, the appellant

was rational and coherent in his responses and the appellant’s emotional state did not

render the statement involuntary.”5 Accordingly, this issue is without merit.



         Second, the appellant contends that substituted appointed counsel, Michael

Engle, was ineffective for (1) failing to object to hearsay testimony at trial, (2) “allow[ing]

perjured testimony during the trial,” (3) refusing to ask questions which would have

acquitted the appellant, (4) failing to have “an unexplained noise” on the “alleged

confession tape” analyzed, and (5) “fail[ing] to prove to the jury that there was an

ongoing custody battle between the appellant and his ex-wife.” Initially, we note that

nowhere is there found within the argument portion of the appellant’s brief any

reference to the deficient performance of trial counsel Engle. Accordingly, these issues

are waived because they are not supported by argument or citation to authority. Tenn.

Ct. Crim. R.App.10(b); Tenn. R. App. P. 27(a)7; Harvey v. State, 749 S.W.2d 478, 479

(Tenn. Crim. App. 1987), perm. to appeal denied, (Tenn. 1988).



             Notwithstanding this procedural default, the proof before us supports the

detailed findings of the trial court, concluding this issue is without merit:

         Senior Assistant Public Defender Engle is a highly experienced and
         competent criminal defense attorney who represented petitioner in a
         thorough and diligent manner. In support thereof, the Court points to the
         following: counsel made numerous contacts with his client in preparation
         for trial; counsel investigated all allegations of abuse; counsel interviewed
         several witnesses in preparation for trial, and also reviewed a wealth of
         information provided by the petitioner; counsel conferred with prior
         counsel, Attorney Jay Norman, and to that effect, reviewed records of the
         juvenile court proceedings concerning alleged abuse by the petitioner of
         his daughters; counsel submitted a lengthy and detailed Motion to
         Reconsider the trial court’s denial of the motion to suppress the
         statements to police; counsel submitted motions challenging the
         sufficiency of multiple counts of the indictment, two of which the trial court
         dismissed, and, in the process, challenged the disappearance of
         Department of Human Services records which contained information of
         past investigations of the petitioner; counsel conferred with his client
         during the trial and discussed the witness list; counsel reviewed proposed

         5
         We acknowledged that the appellant’s challenge to the voluntariness of his statement on
appeal was predicated upon the coercive nature of the police. Nevertheless, the issue remains
one of vo luntarines s which was de termin ed after a “full and fair he aring,” in bo th trial and ap pellate
courts. Tenn. Code A nn. § 40-30-112(a).

                                                     4
         questions submitted by petitioner to be asked in court; counsel called
         witnesses to testify for the petitioner; counsel conferred with petitioner
         about testifying prior to petitioner deciding to take the stand; counsel
         explained the result of the trial to petitioner and also spoke with
         petitioner’s family about the outcome; counsel, at the sentencing hearing,
         opposed the application of certain aggravating factors and submitted
         mitigating factors for the court’s consideration; counsel filed a Motion for
         a New Trial raising all pertinent objections; and counsel assisted in the
         framing of issues for appeal. Finally, according to Counsel Engle, at no
         time did petitioner complain about the representation he was receiving.

The proof preponderates in favor of these findings.




         Finally, the appellant alleges deficient performance of appellate counsel, Jeff

DeVasher, on appeal. Again, we find it unnecessary to address the merits of this issue

as the issue is not supported by argument. Tenn. Ct. Crim. R. App. 10(b); Tenn. R.

App.P. 27(a)(7).6 This issue is waived.



B. Prosecutorial Misconduct

         Next, the appellant contends that the assistant district attorney committed

prosecutorial misconduct by “using known perjured testimony” and by “deliberate

destruction of all exculpatory material in this matter.”7 The appellant bases this

contention on the claim that the detective who arrested the appellant gave “three

different statements at two different hearings, and, therefore, all those statements

cannot be true.” Moreover, the appellant contends that the State again committed

misconduct when it claimed it did not have certain records from the Department of

Human Services detailing several interviews with the appellant’s three daughters, the

victims in this case. This issue has been waived because it could have been raised on

direct appeal. Tenn. Code Ann. §§ 40-30-111, -112 (repealed 1995).                                  “[W]hen a


         6
         Included within the appellant’s ineffective assistance of counsel claim are the additional
assertions that (1) the reasonable doubt jury instruction was unconstitutional, (2) the indictment
was fatally deficient, and (3) the indictments were altered. These issues are also waived because
they were not designated as issues or contained within the statement of the issues presented for
review and because they were n ot briefed. Tenn.R.App.P. 27(a)(4), - (a)(7).

         7
           The trial co urt, at the po st-conv iction hear ing, found no m erit to this claim , conclud ing:
“. . . the Court is of the opinion that absolutely no credible evidence has been presented that
would warrant such a finding. . . . In the Court’s judgment, petitioner’s assertions of misconduct
are based entirely on unfounded speculation.” We agree with this finding.

                                                     5
petition for post-conviction relief does not allege facts showing that the grounds

asserted for relief were not waived in a prior proceeding in which they could have been

presented, the petition does not present a colorable claim for relief and is subject to

dismissal.” State v. Smith, 814 S.W.2d 45, 47 (Tenn. 1991); see also Tenn. Code Ann.

§ 40-30-112(b)(1). This issue is without merit.



       For the foregoing reasons, the judgment of the trial court dismissing the

appellant’s petition for post-conviction relief is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:



___________________________________
GARY R. WADE, Presiding Judge



___________________________________
JERRY L. SMITH, Judge




                                           6
