             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE

                            DECEMBER 1997 SESSION



                                                          FILED
JERRY DALE DUFFEY,                  )
                                    )                       March 18, 1998
                    APPELLANT,      )
                                    )                     Cecil W. Crowson
                                                No. 01-C-01-9701-CC-00016
                                    )                   Appellate Court Clerk
                                    )           Marshall County
v.                                  )
                                    )           W. Charles Lee, Judge
                                    )
                                    )           (Post-Conviction Relief)
STATE OF TENNESSEE,                 )
                                    )
                     APPELLEE.      )



FOR THE APPELLANT:                       FOR THE APPELLEE:

Curtis H. Gann                           John Knox Walkup
Assistant Public Defender                Attorney General & Reporter
P.O. Box 1119                            425 Fifth Avenue, North
Fayetteville, TN 37334                   Nashville, TN 37243-0493
(Appeal Only)
                                         Ellen H. Pollack
Michael D. Randles                       Assistant Attorney General
Assistant Public Defender                450 James Robertson Parkway
P.O. Box 1119                            Nashville, TN 37243-0493
Fayetteville, TN 37334
(Trial Only)                             W. Michael McCown
                                         District Attorney General
OF COUNSEL:                              P.O. Box 904
                                         Fayetteville, TN 37334
John H. Dickey
District Public Defender                 Weakley E. Barnard
P.O. Box 1119                            Assistant District Attorney General
Fayetteville, TN 37334                   Marshall County Courthouse
                                         Lewisburg, TN 37091




OPINION FILED:___________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Jerry Dale Duffey (petitioner), appeals as of right from a judgment

of the trial court dismissing his post-conviction action following an evidentiary hearing. The

petitioner contends (a) the trial judge committed error of prejudicial dimensions by refusing

to recuse himself and (b) the evidence contained in the record establishes the petitioner

was denied his constitutional right to the effective assistance of counsel. After a thorough

review of the record, the briefs submitted by the parties, and the law governing the issues

presented for review, it is the opinion of this court that the judgment of the trial court should

be affirmed.



                                               I.

                               PROCEDURAL HISTORY



       The Marshall County Grand Jury returned a thirty-one count indictment against the

petitioner. Each count of the indictment charged the offense of theft by fraud and deceit.

The petitioner was convicted of twenty-seven counts of felony and misdemeanor offenses.

The trial court imposed an effective sentence of confinement for fourteen (14) years in the

Department of Correction.

       The petitioner appealed as of right to this court. The only issue raised was the

sufficiency of the convicting evidence. This court affirmed the judgment of the trial court.

State v. Jerry Dale Duffey, Marshall County No. 01-C-01-9501-CC-00017, 1995 WL

441611 (Tenn. Crim. App., Nashville, July 26, 1995). The supreme court denied the

petitioner’s application for permission to appeal on February 5, 1996.

       The petitioner instituted this post-conviction action on March 1, 1996. The trial court

appointed counsel to represent the petitioner. An evidentiary hearing was held on July 24,

1996. The trial court entered its judgment denying the relief sought on September 6, 1996.




                                               2
                                              II.

                         RECUSAL OF THE TRIAL COURT



       The petitioner contends the trial judge abused his discretion by denying the motion

for recusal. The record reflects the petitioner sued a multitude of people in Marshall

County. It appears the petitioner alleged the trial judge, clerk, court reporter, attorney

general, assistant attorney general, and a multitude of other people conspired to have him

convicted of what he continues to describe as civil matters.           The petitioner sought

$62,000,000.00 in damages.

        The record is sketchy regarding the lawsuit. A copy of the complaint was not

introduced as evidence during the hearing on the motion for recusal. It appears the lawsuit

was dismissed by another judge, and, according to the petitioner, he planned to appeal the

dismissal. On the other hand, the petitioner stated he had never issued the summons he

was required to serve the parties. The trial judge stated he had not been served with a

summons, but he had read the complaint before the hearing.

       An extensive hearing was held on the motion for recusal. When the petitioner was

questioned, he admitted he did not have any evidence that the trial court conspired with

any other person to deny him his rights. He testified the trial judge knew or should have

known the thirty-one counts contained in the indictment failed to state a crime, yet the

judge permitted the Marshall County grand jury to indict him for “civil” violations. The

petitioner also stated the trial judge knew the indictments were facially defective and void,

but permitted the jury to convict him of the offenses. He opined the trial judge “went out

of his subject matter jurisdiction . . . when you hear a civil case in criminal court.”

       When the petitioner was asked if he had any evidence the trial judge knew when the

assistant district attorney general was going to present the indictment to the grand jury, the

petitioner answered: “Absolutely none, sir” and “I have no proof.” On several occasions

the petitioner stated the proof was “in the [trial] transcripts.” He also contended the trial

judge told the parties how to try their respective lawsuits. However, the reference was to

a discussion over a point of law which occurred outside the presence of the jury. The

petitioner also said his proof of the trial judge’s conspiracy was that the judge sentenced


                                              3
him after he was convicted by the jury.

         In summary, the petitioner predicated his entire cause of action on the contention

he was tried for civil infractions in a criminal proceeding, and he was convicted of these

offenses. The hearing does not contain a scintilla of evidence the trial judge violated any

right of the petitioner.

         The trial judge reviewed the complaint filed by the petitioner. He described the

pleadings as “frivolous.” He noted there had been no service of process and he had not

been served with a summons and copy of the lawsuit. The trial judge recognized judges

and other public officials are sued by citizens convicted of criminal offenses from time to

time. The judge went through a litany of factors he considered relevant to the inquiry

before denying the motion. The trial judge stated on the record he could be fair and

impartial. The record reflects the judge was in fact fair and impartial during the course of

the evidentiary hearing.      The trial court concluded the petitioner was attempting to

disqualify him so he could “forum shop.”

         A motion for recusal addresses itself to the sound discretion of the trial court. State

ex rel. Phillips v. Henderson, 220 Tenn. 701, 707, 423 S.W.2d 489, 491 (1968); In re

Cameron, 126 Tenn. 614, 649-50, 151 S.W. 64, 74 (1912); Caruthers v. State, 814 S.W.2d

64, 67 (Tenn. Crim. App.), per. app. denied (Tenn. 1991). An appellate court will not

interfere with the exercise of this discretion unless clear abuse appears on the face of the

record. Phillips, 220 Tenn. at 707, 423 S.W.2d at 491; State v. Boggs, 932 S.W.2d 467,

472 (Tenn. Crim. App.), per. app. denied (Tenn. 1996); Caruthers, 814 S.W.2d at 67.

Thus, the standard of review in these matters is abuse of discretion. State v. Cash, 867

S.W.2d 741, 749 (Tenn. Crim. 1993). As the supreme court said in State v. Hurley, 876

S.W.2d 57, 64 (Tenn. 1993), cert. denied, 513 U.S. 933, 115 S.Ct. 328, 130 L.Ed.2d 287

(1994): “The issue to be determined is not the propriety of the judicial conduct of the trial

judge, but whether he committed an error which resulted in an unjust disposition of the

case.”

         In this jurisdiction, “a trial judge should recuse himself whenever he has any doubt

as to his ability to preside impartially in a criminal case or whenever he believes his

impartiality can reasonably be questioned.” Lackey v. State, 578 S.W.2d 101, 104 (Tenn.



                                                4
Crim. App. 1978), per. app. denied (Tenn. 1979).          The relevant inquiry is whether “a

person of ordinary prudence in the judge’s position, knowing all of the facts known to the

judge, would find a reasonable basis for questioning the judge’s impartiality.” Alley v.

State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994).

       In the context of this case, the trial judge did not abuse his discretion by denying the

petitioner’s motion for recusal, given the testimony and statements in the record, the

frivolous nature of the complaint filed by the petitioner, and the fact the petitioner could not

muster a scintilla of evidence to support his allegations and contentions. Apparently, the

petitioner does not realize a person can be sued civilly and be convicted of a criminal

offense based upon the same transaction and identical facts. Moreover, a petitioner

should not be permitted to file a lawsuit or make frivolous and scurrilous allegations for the

purpose of disqualifying a trial judge or to “forum shop.”

       This issue is without merit.



                                              III.

                    EFFECTIVE ASSISTANCE OF COUNSEL



       The petitioner contends he was denied his constitutional right to the effective

assistance of counsel. He argues his attorney failed to (1) challenge the sufficiency of the

indictment returned by the grand jury, (2) file a motion for severance of offenses, (3) call

a sufficient number of defense witnesses, and (4) move for a change of venue. The trial

court accredited the testimony given by the state’s witnesses, defense counsel, and the

deputy sheriff who handled the investigation into the transactions which led to the

indictment, and rejected the testimony of the petitioner.

       The record supports the findings of fact made by the trial court. The evidence

presented by the petitioner and the evidence presented by the State of Tennessee

conflicts, and these conflicts cannot be resolved. The trial court accredited the testimony

of the state’s witnesses and rejected the testimony of the petitioner. It is understandable

why the court accredited the state’s testimony given the nature of the petitioner’s

testimony. For instance, the petitioner testified he had spoken to agents of the Federal


                                               5
Bureau of Investigation about what had occurred in Marshall County and the file containing

his complaints was sitting on the desk of Attorney General Janet Reno in Washington, D.C.

In short, the petitioner failed to establish the allegations of his complaint by “clear and

convincing evidence.” Tenn. Code Ann. § 40-30-210(f).

      Either the defense attorney’s conduct did not constitute ineffective assistance of

counsel or, in the alternative, the petitioner was not prejudiced due to defense counsel’s

representation. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). Therefore, the trial

court properly dismissed the petitioner’s post-conviction action.




                                  _____________________________________________
                                        JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
      PAUL G. SUMMERS, JUDGE



______________________________________
      WILLIAM M. BARKER, JUDGE




                                            6
