             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE                  FILED
                            OCTOBER 1995 SESSION
                                                              October 24, 1997

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
LEN MARTUCCI,                        )
                                     )
             Appellant,              )     No. 03C01-9412-CR-00438
                                     )
                                     )     Anderson County
v.                                   )
                                     )      Honorable James B. Scott, Jr., Judge
                                     )
STATE OF TENNESSEE,                  )      (Post-Conviction)
                                     )
             Appellee.               )


For the Appellant:                   For the Appellee:

J. Michael Clement                   Charles W. Burson
210 Charles Seivers Blvd.            Attorney General of Tennessee
Clinton, TN 37716                           and
                                     John Patrick Cauley
                                     Assistant Attorney General of Tennessee
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     James N. Ramsey
                                     District Attorney General
                                             and
                                     Jan Hicks
                                     Assistant District Attorney General
                                     Anderson County Courthouse
                                     Clinton, TN 37716




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                                OPINION


                 The petitioner, Len Martucci, appeals as of right from the Anderson

County Criminal Court’s denial of his petition for post-conviction relief after an

evidentiary hearing. The petitioner has filed a somewhat rambling, ninety-five-page

brief in this court raising a panoply of issues. Essentially, the petitioner argues that he

is entitled to post-conviction relief for the following reasons:

                 (1) the trial court failed to hold a sentencing hearing;

                 (2) the first degree murder jury instruction that was given at his
                 trial is constitutionally deficient under State v. Brown, 836
                 S.W.2d 530 (Tenn. 1992);

                 (3) the court inadequately charged the jury on the state’s
                 burden of proof;

                 (4) judicial and prosecutorial misconduct violated his due
                 process rights;

                 (5) he received the ineffective assistance of counsel;

                 (6) the petitioner was denied his choice of counsel;

Having found no reversible error, we affirm the judgment of the trial court.1



                 The petitioner was convicted of first degree murder in December 1988,

and sentenced to life imprisonment. This court affirmed his conviction. State v. Len

Martucci, No. 213, Anderson County (Tenn. Crim. App. Apr. 3, 1990), app. denied

(Tenn. July 2, 1990). In September 1991, the petitioner filed a pro se petition for post-

conviction relief. The trial court dismissed the petition after appointed counsel failed to

amend it. This court reversed the dismissal and remanded the case in order for the

petitioner’s counsel to amend the petition. Martucci v. State, 872 S.W.2d 947 (Tenn.

Crim. App. 1993). The petitioner now appeals the trial court’s denial of his amended

petition for post-conviction relief.



                 1
                    Although the trial court failed to set forth specific factual findings with respect to each of
the petitioner’s claimed grounds for relief as required under T.C.A. § 40-30-1 18, a remand is unn ecessary
given the s tate of the p resent re cord. See State v. Swanson, 680 S.W.2d 487,489 (Tenn. Crim. App.
1984).

                                                        2
              At the post-conviction evidentiary hearing, the attorney initially retained by

the petitioner to represent him testified that he felt compelled to withdraw from

representing the petitioner because the attorney believed he could be a witness in the

petitioner’s trial. He recalled that the trial court held a hearing to determine whether he

had material evidence to offer as a witness. Although he originally believed that he

would have nothing to offer as a witness at the petitioner’s trial, he explained that it

became apparent to him as the hearing progressed that he could not continue to

represent the petitioner.



              The attorney who represented the petitioner at trial and prepared his

appellate brief also testified at the post-conviction hearing. She said that the petitioner

was unhappy with her while she was representing him because she used her

professional judgment instead of doing everything exactly the way he wanted it done.

She said that she told the court about the petitioner’s concerns and requested that the

petitioner be appointed an additional attorney, but the court refused.



              With respect to her investigation of the petitioner’s case, the petitioner’s

trial attorney testified that she traveled to Tyler, Texas, and spoke to a number of

potential witnesses that she learned about from the petitioner or through discovery.

She said that she also visited the crime scene but that she did not take pictures or

measurements of the crime scene. She said that she did not measure the crime scene

because she thought the measurements may have worked against the defense. She

recalled that she had asked one of the investigating police officers to accompany her to

the crime scene but that he had refused to do so without the prosecutor’s permission.

Although she reviewed all the physical evidence that she gained through discovery, she

admitted that she did not provide the defendant with a copy or photograph of each

piece of evidence. She said that she met with the petitioner numerous times before his



                                              3
trial and estimated that she spent no less than twenty-five or thirty hours talking to the

petitioner in preparation for the trial.



               The attorney remembered that during the petitioner’s trial, the state had a

box and at least one bag of evidence that was visible to the jury before it was

introduced into evidence. She explained that she and the petitioner knew that the

containers held items that had been seized from the petitioner’s car. She said that she

thought the display of the containers of evidence that had not yet been admitted was

prejudicial and that she brought her concerns to the trial court’s attention.



               The petitioner’s trial attorney also testified that she objected to the state’s

use of mug shots of the petitioner that were attached to a police report. She recalled

that the trial court sustained her objection and that the prosecuting attorney disobeyed

the trial court’s instruction by failing to remove the photographs from the report before

using it to impeach the petitioner. She said that she did not request a curative

instruction or that the jury be polled when the prosecutor disobeyed the court’s

instruction because she did not want to draw attention to the photographs. She also

stated that she had no reason at that time to think that any juror had seen the

photographs.



               The attorney testified that she met with the petitioner two or three times

while she was preparing his direct appeal and that she also had quite a bit of

correspondence with the petitioner. She said that she reviewed each of the letters that

the petitioner sent her to determine whether they contained anything that needed to go

in his appellate brief. She explained that she did not include every issue the petitioner

wanted to raise in the brief because some of the issues he wanted her to raise were

unsupported by the facts or law.




                                               4
                  The attorney who orally argued the petitioner’s case testified that he was

assigned to the petitioner’s case after the appellate brief had been filed. He said that

he familiarized himself with the record and argued the issues that were raised in the

brief. In his review of the record, he did not find any issues that had not been raised

that would have changed the outcome of the appeal. Although he said that he read

correspondence that contained the petitioner’s concerns, he could not recall whether he

factored the petitioner’s concerns into his argument.



                  The petitioner also testified at the post-conviction hearing. He said that he

was dissatisfied with his trial attorney’s representation of him. He said that he never

requested appointed counsel and denied that he was indigent at the time of trial. He

said that his trial counsel did not provide him with copies of the information she

received through discovery. He also complained because she failed to request a

curative instruction when at least four members of the jury were exposed to his mug

shots while he was being cross-examined. He said that she also failed to request a

curative instruction when he invoked his Fifth Amendment right while he was testifying

and when a police officer made disparaging facial expressions during the petitioner’s

testimony.



                  The petitioner admitted that he had the opportunity during his testimony to

say everything he wanted to say about the shooting. However, he said that three

suicide letters he had written should have been introduced at his trial. He explained

that the three letters would have placed a letter that the state introduced at trial in

context.2 The petitioner also stated that he never talked to the attorney who orally

argued his direct appeal. Although the petitioner recalled that the attorney sent him

letters regarding when his case was to be argued, the petitioner said that he did not

know whether the attorney incorporated his suggestions into the argument.



       2
           The letters are n ot pa rt of th e rec ord o n app eal.

                                                            5
              In making its ruling, the trial court divided the petitioner’s allegations into

four categories: ineffective assistance of counsel, errors of the trial court, jury

instruction errors, and prosecutorial misconduct. With respect to the petitioner’s

ineffective assistance of counsel claim, the trial court held that the petitioner failed to

establish that his counsel performed deficiently and prejudiced the outcome of the

verdict.



              Regarding the petitioner’s allegations of trial court error, the court held

that some of the issues the petitioner raised were previously determined in his direct

appeal and that petitioner waived some issues. The court noted that the record

supports the trial court’s appointment of counsel even though no formal indigency

hearing was held.



              The court also refused to grant post-conviction relief based on alleged jury

instruction errors and allegations of prosecutorial misconduct. The court concluded that

the jury instruction errors did not rise to a constitutional level so as to warrant post-

conviction relief. Relative to the petitioner’s allegations of prosecutorial misconduct, the

court ruled that the petitioner failed to demonstrate that he was prejudiced by any of the

alleged misconduct and that some of the petitioner’s allegations of prosecutorial

misconduct had been previously determined during his direct appeal.



                         I. DENIAL OF SENTENCING HEARING

              The petitioner contends that his constitutional rights were violated by the

trial court’s failure to hold a sentencing hearing. This court ruled against the petitioner

on this issue during his direct appeal. State v. Len Martucci, slip op. at 12.

Accordingly, the issue has been previously determined and is not a proper ground for

post-conviction relief. See T.C.A. § 40-30-311 (1990); House v. State, 911 S.W.2d 705

(Tenn. 1995), cert. denied, 116 S. Ct. 1685 (1996).



                                              6
                   II. FIRST DEGREE MURDER JURY INSTRUCTION

               The petitioner relies on State v. Brown, 836 S.W.2d 530, 543 (Tenn.

1992), to contend that his due process rights were violated by the jury instructions given

at his trial regarding the elements of premeditation and deliberation. However, this

court has refused to apply Brown’s holdings retroactively, see, e.g., Lofton v. State, 898

S.W. 2d 246, 250 (Tenn. Crim. App. 1994), and we refuse to do so in this case.



                     III. REASONABLE DOUBT JURY INSTRUCTION

               Next, the defendant contends that the reasonable doubt instruction given

at his trial violated his due process rights. The trial court gave the following reasonable

doubt instruction at the petitioner’s trial:

                        The burden of proof rests upon the state to establish the
               guilt of the defendant beyond a reasonable doubt and a finding
               of guilt is not warranted unless this burden is sustained. A
               conviction cannot be based on conjecture, suspicion or a mere
               belief that the defendant is guilty of the crime charged. Each
               juror must find the defendant guilty beyond a reasonable
               doubt.

                      Reasonable doubt is not a mere possible doubt
               because everything relating to human affairs is open to some
               possible or imaginary doubt. It is an honest doubt engendered
               after an investigation of all the evidence and an inability after
               such investigation to let the mind rest easily as to the moral
               certainty of guilt. And this certainty is required as to every
               essential element of the crime charged or included in the
               indictment.

This is an adequate statement of the state’s burden of proof for criminal trials in

Tennessee. See, e.g., Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v.

Sexton, 917 S.W.2d 263, 266 (Tenn Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d

364, 366 (Tenn. Crim. App. 1994); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim.

App. 1993). Thus, the use of this instruction at the petitioner’s trial did not amount to a

violation of his due process rights.




                                               7
                       IV. JUDICIAL AND PROSECUTORIAL MISCONDUCT

                  Next, the petitioner contends that his due process rights were violated

through judicial and prosecutorial misconduct. Although the defendant phrases the

issue in terms of both judicial and prosecutorial misconduct, he devotes most of his

argument to allegations of prosecutorial misconduct. Many of the prosecutorial

misconduct claims that the petitioner raises are not proper grounds for post-conviction

relief because they were previously determined in his direct appeal. See State v. Len

Martucci, slip op. at 10-12. With respect to the other prosecutorial misconduct

allegations,3 the petitioner has failed to demonstrate that the prosecutor’s actions were

improper or that he was prejudiced by the alleged misconduct.



                      The allegations of judicial misconduct the petitioner raises relate to the

trial judge’s failure to recuse himself from presiding at the post-conviction hearing, the

pretrial bond that the trial court set and the trial court’s failure to give a curative

instruction after the prosecuting attorney disobeyed a court ruling about removing mug

shots from a police report before the report was used to impeach the petitioner. The

petitioner is not entitled to relief on any of these claims.



                  The petitioner contends that the trial judge should have recused himself

from presiding over the post-conviction hearing. He asserts that the trial judge’s

impartiality at the post-conviction hearing might reasonably be questioned because the

judge had personal knowledge of disputed evidentiary facts. Although the judge had



                  3
                     Asid e fro m th e pro sec utoria l mis con duc t claim s tha t the p etition er rais ed du ring h is
direct appeal, the petitioner contends that the state gave the trial court incorrect information about the
petitioner, m ade inco rrect state men ts conc erning the petitioner’s fina ncial con dition, imp roperly plann ed to
call the petitioner’s retained attorney as a witness, failed to supply the petitioner with discovery, housed
members of the jury, the victim’s family, and the state witnesses together, allowed inconsistencies or
hearsay in the testimony of some of the state’s witnesses, seated the victim’s friends and fam ily members
close to the jury, called an ex-employee of the hotel where the petitioner had stayed to testify rather than
calling a different hotel clerk, improperly questioned the defendant about his financial condition, proffered
expert testimony on intoxication, credited the state’s witnesses and disparaged the defense witnesses
during its closing argument, misstated the evidence during closing argument, misstated the law during
closing argument, prevented the defendant from receiving a sentencing hearing, and introduced video
tape s at th e hea ring o n the mo tion fo r new trial.



                                                            8
been subpoenaed to testify at the post-conviction hearing, he quashed the subpoena

because he concluded that the matters alleged in the post-conviction petition could be

addressed by other witnesses and evidence within the court record. The petitioner has

failed to offer any proof on this issue other than the fact that the judge presided at his

trial. Under these circumstances, we cannot say that the trial judge abused his

discretion by refusing to recuse himself from presiding over the post-conviction hearing.



              The petitioner’s complaints about excessive pretrial bond are not proper

grounds for post-conviction relief as presented. This court rejected the petitioner’s

claim that his bail was excessive in his direct appeal. State v. Len Martucci, slip op. at

3. Moreover, post-conviction relief is only available when the abridgement of a

constitutional right causes a defendant’s conviction or sentence to be void or voidable.

See T.C.A. § 40-30-105. An excessive pretrial bond does not, by itself, make a

defendant’s conviction or sentence void or voidable and thus is not a basis for post-

conviction relief. The petitioner fails to show both how his bond was excessive and how

he was prejudiced in the case as a result of his bond.



              Also, we do not believe that the petitioner is entitled to post-conviction

relief based on the trial court’s failure to give a curative instruction. The trial court

scolded the prosecuting attorney when it realized that the report she handed the

petitioner to impeach him had the petitioner’s mug shots attached to it. When the

prosecuting attorney offered to remove them, the trial court told her that he did not want

them removed where they could be seen. The trial court then ordered the prosecutor to

give it the report and to move on to something else. The record does not reveal how

many jurors, if any, actually saw the photographs, although the petitioner stated at the

post-conviction hearing that at least four jurors could have seen them. Under such

circumstances, we are unable to say that a curative instruction was necessary. Thus,

post-conviction relief on the issue is not warranted, because the trial court’s failure to



                                               9
give a curative instruction did not amount to a violation of the petitioner’s constitutional

rights that would make his conviction or sentence void or voidable.



                     V. INEFFECTIVE ASSISTANCE OF COUNSEL

              The petitioner contends that he received the ineffective assistance of

counsel. Under the Sixth Amendment, when a claim of ineffective assistance of

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

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

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

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

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, to the right to

counsel under Article I, Section 9 of the Tennessee Constitution, State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn. 1989), and to the right to appellate counsel under the

Fourteenth Amendment. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); see

Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985).



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in reviewing counsel's conduct, a "fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Strickland v. Washington, 466 U.S. at 689, 104 S.

Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will



                                             10
not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic

failed or even hurt the defense does not, alone, support a claim of ineffective

assistance. Deference is made to trial strategy or tactical choices if they are informed

ones based upon adequate preparation. See Hellard v. State, 629 S.W.2d at 9; United

States v. DeCoster, 487 F.2d at 1201.



                  Also, we note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney's conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.



                  Although the petitioner raises numerous claims of ineffective assistance

of counsel,4 he has failed to establish that his attorneys were deficient or that he was

prejudiced by any of the alleged deficiencies. Thus, he is not entitled to post-conviction

relief on this ground.



                               VI. DENIAL OF CHOICE OF COUNSEL

                  The petitioner contends that his due process rights were violated because

he was denied his choice of counsel. He argues that the trial court erred by appointing



                  4
                    The petitioner contends that his appointed counsel was ineffective in her pretrial work on
the case because she refused to withdraw from representing him, failed to secure a bond hearing and an
indigency hearing, failed to investigate his indigency status, failed to procure expert testimony regarding
intoxication, failed to adequately prepare to cross-examine the state’s witnesses, failed to provide the
defe nda nt with copie s of p roof obta ined t hrou gh dis cove ry, faile d to th orou ghly inv estig ate th e crim e
scene, failed to file interlocutory appeals, failed to advise the defendant about the attorney-client privilege,
ordered transcripts of the pretrial hearings only fifteen days before trial, failed to file a motion for a change
of venue, and failed to seek recusal of the trial judge.


                    The p etitioner con tends tha t his coun sel was ineffective at trial becau se she failed to
effe ctively c ross -exa min e the state ’s witn ess es, fa iled to requ est s tatem ents ma de by t he st ate’s
witnesses before cross-examining them, failed to consult with the defendant to see if he wanted her to ask
any more questions of the state’s witnesses, failed to request curative instructions or poll the jury after the
jury was improperly exposed to the petitioner’s mug shots, failed to request other curative instructions, and
failed to obje ct to the trial judg e’s participa tion in the introd uction of a photogr aph of th e victim. W ith
respec t to his appe llate couns el, the petitione r conten ds that his couns el was ine ffective fo r failing to
disclose police contact with a witness, failing to file affidavits of complaint against the trial judge, the
assistan t attorney ge neral and the cour t clerk, an d beca use the petitioner did n ot have a dequa te
participation in the appe al.

                                                        11
the public defender to represent him at his trial without holding an indigency hearing.

The petitioner’s complaint about the trial court’s failure to hold an indigency hearing was

previously determined in his direct appeal. State v. Len Martucci, slip op. at 12.

Moreover, the attorney the petitioner initially retained to represent him properly withdrew

after he concluded that he may be called to testify against the petitioner. See Tenn.

Sup. Ct. R. 8, DR-502. The petitioner is not entitled to post-conviction relief on this

ground.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                                 Joseph M. Tipton, Judge

CONCUR:



John H. Peay, Judge



David G. Hayes, Judge




                                            12
