         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                            APRIL SESSION, 1998          August 18, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
LARRY JUNIOR KEATON,              )     C.C.A. NO. 01C01-9704-CR-00146
                                  )
           Appe llant,            )
                                  )     DEKALB COUNTY
V.                                )
                                  )
                                  )     HON. LEON BURNS, JR., JUDGE
STATE OF TENNESSEE                )
                                  )
           Appellee.              )     (POST -CON VICTIO N)



FOR THE APPELLANT:                      FOR THE APPELLEE:

HENRY D. FINCHER                        JOHN KNOX WALKUP
15 South Jefferson Avenue               Attorney General & Reporter
Cookeville, TN 38501
                                        KAREN M. YACUZZO
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        WILLIAM EDWARD GIBSON
                                        District Attorn ey Ge neral

                                        ANTHO NY J. CR AIGHEAD
                                        Assistant District Attorney General
                                        145 South Jefferson Avenue
                                        Cookeville, TN 38501




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                      OPINION
       The Petitioner, L arry Junio r Keaton , appea ls the orde r of the De kalb Co unty

Criminal Court dismissing his petition for post-conviction relief. Petitioner argues the

followin g four (4 ) issue s in this a ppea l:

               1. Whether Petitioner’s right to due process was violated
               by both the State not giving notice of its intent to dismiss
               a count in the indictment for the s ale of a certain drug and
               by the S tate’s re ferenc e to tha t certain drug d uring tria l;

               2. Wh ether the State’s c losing argum ent at trial was prope r;

               3. W hethe r the ca reer of fende r statute is cons titutiona l;

               4. Wh ether the trial court erred in failing to instruct the jury as to a
               lesser included offense; and

               5. W hether P etitioner’s trial co unsel w as ineffec tive.


       Petitioner was convicted at trial of one count of selling co deine , a Sch edule

III controlled subs tance. The trial court sente nced him to twelve (12) years as a

career offender. On direct appeal, Petitioner alleged that the trial court erred in

failing to charge the jury on simple possession, casual exchange, and missing

witnesses.     State v. Larry Keaton, C.C.A . No. 0 1C0 1-930 8-CC -0026 5, De kalb

Coun ty (Tenn. Crim. App., Nashville, June 30, 1994). This Court rejected those

claims, and Petitioner did not appeal to the supreme court. Id. Petitioner filed a pro

se post-con viction petition raising nu merou s issues , and subsequently his appointed

counsel filed an ame nded post-c onvictio n petitio n. Following a hearing, the trial

court de nied his p etition for po st-convictio n relief.



       In its Rule 20 affirma nce of Petitioner’s direc t appeal, this Cou rt briefly relayed

the facts of the instant case as follo ws: “A state tro oper p urcha sed tw elve (1 2) pills



                                                 -2-
containing codeine and sixty-three (63) counterfeit pills which the defendant had

presented a s ‘somas’ for a total sale in th e amo unt of nine ty-eight do llars ($98). A

confidential informant was present during these transactions, but the State did not

call this witness to testify at trial.”



        Petitioner testified at the post-conviction hearing that he and K athryn Bullard

saw Terry Skinn er whe n they w ent to b uy bee r. Acco rding to Petitioner, Skinner

asked if they had any drugs and Petitioner told him that Bullard had some. Skinner

said he did not have th e mo ney with him a nd as ked if th ey wou ld me et him in thirty

minutes at the same location. Thirty minutes later, Skinner returned. “The best

[Petitioner] can remember,” Bullard counted out the pills and handed them to him,

and then he handed them to Skinner. Skinner then gave Petitioner the money which

he then passed to Bullard.



        Regarding his trial coun sel’s alleged ineffectiveness, Petitioner testified at the

hearing that he met w ith his a ttorney , Chris Cant rell, several times prior to trial. They

discussed the facts of the case and the elements of the charged crimes. They also

discussed calling both Skinner and Bullard as witnesses. When Petitioner asked

Can trell why he w as not g oing to put Bullard on the stand, Can trell said Bullard

would do more harm than good. Petitioner te stified th at he th ough t Bullard would

have testified that she received the proceeds from the sales. However, Petitioner

did admit that Bu llard could have testified that the entire transa ction w as Pe titioner’s

idea.



        Kathryn Bullard testified at the hearing that she and Petitioner were charged

with selling Tyleno l III’s with code ine. Prior to P etitioner’s trial, B ullard pled guilty to

                                              -3-
simp le possession. Bullard claimed at the hearing that Skinner approached her and

Petitioner and wanted to know if they had any pills. Petitioner told Skinner that

Bullard might ha ve som e and S kinner as ked if he co uld meet th em ba ck in thirty

minutes. Accord ing to Bu llard, when the transa ction took place, she was the one

who took the money.



       Howeve r, Bullard adm itted tha t she m ade th e following statement in her

application for pretrial diversion: “Larry Keaton was driving my car and I was in the

car with him. I do not know anything about the incident in question. I do not know

what was going on.” She later met with a probation officer regarding a presentence

report and provided the following statemen t: “I was with my boyfriend, Larry Keaton,

in my car. I didn’t know what he was doing. I was at the wrong place at the wrong

time. I was innocent of this incident. I have never been in any trouble before and

I’ve always tried to lead a dece nt life.”



       Bullard testified that sh e me t with C antrell prior to trial, and that they discussed

Petition er’s case. She told Cantrell that she would take the blame if she testified.

Bullard admitted that she would have likely been impeached at trial had she testified.



       Chris Cantrell, Petitioner’s trial counsel, testified that he met with Petitioner at

least 25 times prior to trial. Petitioner advised him that Bullard would take the blame

if permitted to testify.    Cantrell asked Petitioner if Bullard would be testifying

truthfully, and Petitioner said that she would n ot. Cantr ell state d that h e did n ot call

her as a witne ss beca use he did not wis h to prese nt perju red tes timon y. Can trell did

attempt to use Bullard as a scap egoa t at trial, in essence b laming her for the entire

transaction.

                                             -4-
       Can trell, Petition er, and the Sta te all atte mpte d to loc ate Sk inner, b ut he c ould

not be found because he had fled the county. Cantrell did, however, obtain a copy

of Skinner’s criminal record and questioned Trooper Wilbanks, the undercover police

officer, about it during cross-examination.



       Can trell further testified that Petitioner was originally charged with two crimes,

but that the count regarding the sale of Somas was nolled on the day of trial. At that

point, he had already submitted his proposed jury instructions to the court. Cantr ell

agreed that the State periodically referred to the sale of Somas during the trial. He

testified that he did not object to these references because he did not want to draw

any unnec essary attention to them. He said he believed the references to Somas

“just wen t right over ev eryone’s head.”



                                               I.



A. Nolled Charge

       Petitio ner was originally charged with two counts, the first being the sale of

Codeine, a Schedule III controlled substance, and the second being the sale of

Somas, a Schedule IV controlled substance. Tenn. Code Ann. §§ 39-17-417 (a)(3);

39-17-423 (a)(1). At some point prior to trial, the State notified Petitioner’s trial

counsel that it had nolled the second count as to the sale of Somas.



       Petitioner argues that the S tate’s notice was un timely. Howeve r, Petition er did

not raise this issue in his direct appeal, and his failure to do so constitutes a waiver

of this issue. Tenn. Code Ann. § 40-30-206(g). Even if we deem this issue as not

waived, it is still without me rit. Petitioner fa iled to prese nt any pro of at the po st-

                                              -5-
conviction hearing of how h is trial was pre judiced b y this allege d error. P etitioner

focused on the ineffec tivenes s claim at the h earing , so the court’s ruling o nly

addressed the ineffectiveness claim and a few others. The trial court did not even

address this issue. In fact, when the co urt asked Pe titioner’s counsel if there were

any other issues that req uired a ruling, c ouns el replie d in the negative. In sup port

of his argument, Petitioner refers to Rule 45(c) of the Tennessee Rules of Criminal

Procedure. That rule states that a person who files a motion requiring a hearing

must serve the motion on opposing counsel no later than five days before the time

specified for the hearin g. This rule is n ot app licable to this case . Petitioner fa ils to

cite any other auth ority for the proposition that the State is required to dismiss a

charge by a certa in date. T his issue is without m erit.



B. State’s References to Somas

       During the trial, the S tate referred to the sale of Somas, even though that

count had actually been dismissed. Petitioner now complains that the refere nces to

Somas during trial and during closing argum ent were imp roper. Howe ver, again ,

Petitioner did not raise this issue on direct appeal, and therefore, it is deemed

waived. Ten n. Code A nn. § 40-30-2 06(g).




                                             II.



       Petitioner argues that the S tate impr operly co mm ented o n his failure to testify

when during closing argument the State referred to the officer’s “unrebutted

testimon y.”   The State asserts in its brief tha t this issu e has been previo usly

                                             -6-
determined and is therefore not cogn izable in this petition. See Tenn . Code Ann. §

40-30-206 (h). Specifically, it appears that Petitioner raised this issue in his motion

for a new trial. W e can resolve this issu e aga inst Pe titioner as this Court has

cons istently held that such arguments as the one made by the State in the instant

case are not im proper. See, e.g., Tune v. State, C.C.A. No. 01C01-9412-CC-00423,

Mars hall County (Tenn. Crim. App., Nashville, Oct. 31, 1995), perm. to appeal

denied (Tenn. 199 6).



                                             III.



       Petitioner asse rts that th e care er offen der sta tute is u ncon stitution al.

Petitioner did not raise th is issue at tria l, on direct ap peal, or ev en at the p ost -

conviction hearing . It has ther efore be en waive d. Tenn. Code Ann. § 40-30-206(g)

and -210(f).



                                            IV.



       Petitioner next asserts that the trial court erred in failing to instruct the jury on

the charge of facilitation of a felony. We agree with the court’s finding at the post-

conviction hearing that this is not an issue for post-c onvictio n relief s ince it is not an

abridgment of any co nstitutiona l right. Tenn . Code Ann. § 4 0-30-20 3; see also

Overton v. State, 874 S.W.2d 6, 12 (Tenn. 1994). Furthermore, even if this issue

was proper, Petitioner has waived this issue by failing to raise it at trial or on direct

appeal. Te nn. Code Ann. § 40-3 0-206(g) an d -210(f).



                                             V.

                                             -7-
       Petitioner argues that his trial counsel was ineffective in five instances: (1) for

failing to discover “the supposed informant used in this case;” (2) for failing to locate

Kathryn Bullard in time for trial; (3) for failing to demand an instruction on the lesser-

included offense o f facilitation o f a felon y; (4) for fa iling to o bject to the Sta te’s

references to “unrebutted testimony” during its closing arg umen t and for failing to

argue for jury nullification; and (5) for failing to object to testimony regarding Somas.



       In determining whether counsel provided effective assistance at trial, the court

must decide whether counsel’s performance was within the range of competence

demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). T o succe ed on a claim tha t his cou nsel was ine ffective at trial, a

petitioner bears the burden of showing that his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petitioner resulting in a failu re to

produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.

2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S. 1267 (198 4); Coop er v. State , 849

S.W.2d 744, 747 (T enn. 1993 ); Butler v. Sta te, 789 S.W .2d 898, 899 (Tenn. 199 0).

To satisfy the second prong the petitioner must show a reason able pro bability that,

but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le

doubt regarding petitioner’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable

probab ility must be “sufficient to underm ine confidence in the outcom e.” Harris v.

State, 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted) .



       When review ing trial c ouns el’s actio ns, this Cour t shou ld not use the be nefit

of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at

                                            -8-
the time they were made in light of all facts and circumstances. Strickland, 466 U.S.

at 690; see Cooper, 849 S.W.2d at 746.



       In determining whether this Pe titioner h as sa tisfied th ese re quirem ents, th is

Court must g ive the findin gs of the tria l court the we ight of a jury verdict, and the

judgment of the trial court will not be reversed unless the evidence contained in the

record prepon derates against th e findings of fact ma de by the trial court. State v.

Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).



       W e have reviewed Petitioner’s various claims and we find that Petitioner has

failed to present any evidence that shows that his attorney represented him in any

other mann er than c ompe tently.      As to his first complaint, Petitioner’s counsel

testified at the post-conviction hearing that he, Petitioner, and the State searched for

the informant, who had fled the county, and that nobody could locate him.

Petitioner’s couns el none theless u sed the informa nt’s crimin al record at trial to

impeach the officer who testified on behalf of the State. Petitioner did no t call this

informant as a witne ss at his post-conviction h earing , so the re is no record of his

expected testimony. Therefore, Petitioner cannot prove that he was prejudiced by

the info rman t’s abs ence at trial.



       As to his next claim regarding Kathryn Bullard, Petitioner’s trial counsel

testified that he did not call her as a witness bec ause she intended to pe rjure herself.

Bullard wanted to testify at Petitioner’s trial and take full responsibility for the drug

sale. However, when Petitioner’s counsel asked Petitioner if Bullard’s testimony

would be truthful, he responded negatively. In fact, in the presentence report and

in her request for pretrial diversion, Bullard denies any involvement in the sale.

                                            -9-
Petition er’s counsel was certainly not ineffective for failing to call a witness who

intende d to perjure herself.



      In Petitioner’s claim that his counsel was ineffective for failing to demand an

instruction on a lesser-included offense, the Tennessee Supreme Court has held,

as men tioned previo usly in th is opin ion, that such a com plaint is not co gniza ble in

a post-con viction petition .   See Overton, 874 S.W .2d 6.         Moreove r, the court

reasoned that “to allow every error committed by the trial court to be recast in a post

conviction petition as an ineffec tive assista nce of co unsel alle gation w ould be to

subvert the limited p urposes o f the post conviction p rocedure.” Id. at 12.



      Petitioner also claim s that cou nsel wa s ineffective for failing to object to the

State ’s referenc es to “un rebutted testimon y” during its c losing arg umen t and that

counsel was ineffective for failing to argue for jury nullification. Petitioner did not

present any evidence regarding either of these issues at the post-conviction hearing

and has, therefore, failed to sh ow that he wa s prejudiced in a ny way by these

actions.



       Lastly, Petitioner claims that his counsel was ineffective for failing to obje ct to

testimony regarding Somas. Petitioner’s counsel testified at the post- conviction

hearing that he made a tactical decision not to object to the references because he

did not want to draw attention to them. Even if this was a poor tactical decision,

Petitioner is still not entitled to relief because he has failed to show how he was

prejudiced. The c ourt sta ted at th e pos t convic tion he aring th at “he [P etitione r’s

coun sel] did not object believing that it was part of the transaction and that it did not

have any impact on the jury and it was part of the strategy, an d I see no fault in that.

                                           -10-
It was a pretty clear cut kind of a sale. There wasn’t any q uestio n that a sale

transpired.”



       The trial court furthe r stated in its ruling that “there’s [no] showing here that

there’s any deficiency to begin with and any judgment calls that counse l may have

made in this Court’s opinion did not prejudice the defen dant’s defense in the case

and I believe he received a fair trial.” We agree with the trial court’s findings. The

evidence contained in the limited record does not preponderate against the trial

court’s finding that Petitioner received the effective assistance of counsel. This issue

is without m erit.



       Based on all the fore going , we affirm the trial c ourt’s dism issal of P etitione r’s

petition for p ost-con viction relief.




                                     ____________________________________
                                     THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
L. T. LAFFERTY, Special Judge




                                            -11-
