          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE         FILED
                           JUNE 1998 SESSION
                                                  September 16, 1998

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
ROBERT BURNS,                      )
                                   )    NO. 01C01-9709-CC-00434
      Appellant,                   )
                                   )    MAURY COUNTY
VS.                                )
                                   )    HON. WILLIAM B. CAIN,
STATE OF TENNESSEE,                )    JUDGE
                                   )
      Appellee.                    )    (Post-Conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:

SHARA ANN FLACY                         JOHN KNOX WALKUP
District Public Defender                Attorney General and Reporter

JOHN R. WINGO (At Hearing)              ELIZABETH B. MARNEY
Assistant Public Defender               Assistant Attorney General
209 W. Madison Street                   Cordell Hull Building, 2nd Floor
P.O. Box 1208                           425 Fifth Avenue North
Pulaski, TN 38478-1208                  Nashville, TN 37243-0493

JOHN E. HERBISON (On Appeal)            T. MICHAEL BOTTOMS
2016 Eighth Avenue S.                   District Attorney General
Nashville, TN 37204-2202
                                        JESSE DURHAM
                                        Assistant District Attorney General
                                        10 Public Square
                                        P.O. Box 1619
                                        Columbia, TN 38402-1619




OPINION FILED:



AFFIRMED



LEE MOORE,
SPECIAL JUDGE
                                       OPINION



       The petitioner, Robert Burns, appeals the order of the Maury County Circuit

Court denying his petition for post-conviction relief. Petitioner is currently serving

a sentence of fifty (50) years for one (1) count of second degree murder. Because

the offense was committed with a firearm, petitioner’s sentence was enhanced five

(5) years for an effective sentence of fifty-five (55) years. Petitioner filed the present

petition, claiming that he received ineffective assistance of trial and appellate

counsel. On appeal, he argues that counsel was ineffective by failing to: (1) listen

to the audiotape of defendant’s preliminary hearing; (2) request a special jury

charge on mutual combat; (3) submit the sentencing hearing transcript as part of the

record on direct appeal; and (4) challenge the sufficiency of the evidence on direct

appeal regarding venue. After a thorough review of the record before this Court, we

find no reversible error. Accordingly, the judgment of the trial court is affirmed.



                             FACTUAL BACKGROUND



                                        A. Trial

       Petitioner was convicted by a Maury County jury of one (1) count of second

degree murder by use of a firearm. His conviction was affirmed by this Court. State

v. Robert Burns, C.C.A. No. 89-117-III, Maury County (Tenn. Crim. App. filed

December 21, 1989, at Nashville). We will recite the facts, in part, as set out by this

Court on direct appeal:

               On Thanksgiving morning, November 26, 1987, the
       defendant's sons, Ronnie Burns and Jerry Burns, went hunting with
       three other young men on property adjacent to a farm owned by the
       victim, Virgil Fuller. At lunchtime, they reported to the defendant that
       they had heard several shots fired from the vicinity of the Fuller
       residence.1




       1
          Some tension had apparently existed between the defendant’s and the victim’s
respective families for some time relating to the defendant’s family’s use of adjoining
property.

                                            2
              In response to his son's comments, later that afternoon the
       defendant armed himself, drove to the victim's trailer, blew his car's
       horn, and walked toward the trailer. The victim placed a handgun in
       the waistband of his pants, went outside and said, “Get out of here,
       Robert Burns. I'm not going to argue with you.”

              According to Michelle Lewis, the victim's thirteen year old
       stepdaughter, the victim jumped back with his hands up just as the
       defendant fired. The victim then ran behind a tree, drew his weapon,
       and fired two shots. When the defendant got inside his car, the victim
       returned to his residence . . .

              Medical testimony established that the victim died from blood
       loss resulting from a single gunshot wound to the abdomen. There
       was an exit wound in the back.

       ....

              Immediately after the shooting, Sergeant James Johnston of
       the Maury County Sheriff's Department questioned the defendant at
       his residence. The defendant denied knowing anything about the
       shooting and claimed that he had been in his hay field.

               In a search later that evening, authorities found a box of shells
       in the defendant's bedroom, a holster, and a gun underneath some tin
       beside his garage. The pistol had four live rounds and one spent shell
       under a cocked hammer. The defendant admitted having hidden the
       weapon.

               Afterwards, the defendant admitted that he shot the defendant
       but claimed that it was in self-defense. A bullet was found in the Fuller
       residence near the door. The crime laboratory later determined that
       it had been fired from the defendant's gun.

              At trial, the defendant testified that the defendant cursed him,
       ordered him to leave, and shot three or four times before the
       defendant returned fire from some three to four feet away. He claimed
       that he initially lied to officers because he was scared.

State v. Robert Burns, No. 89-117-III, 1989 Tenn. Crim. App. LEXIS 893, at *1-2.

                                B. Post-Conviction

       Jerry Colley was retained to represent petitioner at trial. He testified that his

legal career spanned forty-six (46) years and he had tried over 100 murder cases.

He stated that he met with the petitioner several times prior to trial and investigated

the case thoroughly.

       He acknowledged that he failed to listen to the audiotape of petitioner’s

preliminary hearing, and his secretary made an error in the transcript. When he

attempted to use the preliminary hearing transcript to impeach a state’s witness, it

was discovered that the transcript was inaccurate. However because he could not




                                           3
recall the witness’ preliminary hearing testimony fully prior to trial, he saw no reason

to question the transcript’s accuracy.

       He testified that he was unaware of why he did not request that the trial court

charge the jury on mutual combat. He further stated that he did not contest the

sufficiency of the evidence on appeal because he thought such a claim would have

been frivolous.

       Petitioner testified that his attorney met with him only once prior to trial. He

further stated that he informed Colley prior to trial that the preliminary hearing

transcript was erroneous, but Colley disregarded this information.

       The trial court found that counsel’s representation was not only effective, but

“outstanding.” The court further found that petitioner suffered no prejudice from any

of counsel’s alleged deficiencies. Thus, the trial court denied post-conviction relief.

From this ruling, petitioner now brings this appeal.



                            STANDARDS FOR REVIEW



       The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim.

App. 1995). The trial court’s findings of fact are afforded the weight of a jury verdict,

and this Court is bound by the trial court’s findings unless the evidence in the record

preponderates against those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn.

1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State,

934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or

reevaluate the evidence, nor substitute its inferences for those drawn by the trial

judge. Henley v. State, 960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399,

403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App. 1990). Questions concerning the credibility of witnesses and the weight and

value to be given to their testimony are resolved by the trial court, not this court.




                                           4
Henley v. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755. The burden

of establishing that the evidence preponderates otherwise is on petitioner. Henley

v. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755.



                   INEFFECTIVE ASSISTANCE OF COUNSEL



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the

wide range of acceptable professional assistance. Strickland v. Washington, 466

U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.

App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

Therefore, in order to prove a deficiency, a petitioner must show that counsel’s acts

or omissions were so serious as to fall below an objective standard of

reasonableness under prevailing professional norms. Strickland v. Washington,

466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State, 960 S.W.2d at 579; Goad v.

State, 938 S.W.2d at 369.

                        A. Preliminary Hearing Transcript

       Petitioner contends that trial counsel was ineffective for failing to listen to the

audiotape of petitioner’s preliminary hearing prior to trial. State witness, Michelle




                                            5
Lewis, testified at trial that her stepfather told petitioner before he was shot, “Get out

of here, Robert Burns. I’m not going to argue with you.” During cross-examination,

trial counsel attempted to impeach Lewis with the transcript of her preliminary

hearing testimony, wherein it was transcribed that she heard Fuller say, “Get out of

here, Robert Burns, or I’ll put a hole in you.” Lewis denied that she testified in that

manner.

       In a jury-out proceeding, the prosecution informed the court and defense

counsel that the transcript of Lewis’ preliminary hearing testimony was incorrect, in

that she did testify that Fuller stated, “I’m not going to argue with you” instead of “I’ll

put a hole in you.” Defense counsel argued that his secretary transcribed the

hearing at his request, and the transcript was mistakenly inaccurate. Defense

counsel promptly moved for a mistrial, which was denied by the trial court. Upon

the jury’s return, the trial court gave curative instructions. The disputed portion of

the audiotape of the preliminary hearing was then played for the jury.

       Petitioner appealed the trial court’s denial of the mistrial on direct appeal.

This Court affirmed the trial court’s decision, implicitly holding that the petitioner’s

right to a fair trial was not compromised. State v. Robert Burns, No. 89-117-III,

1989 Tenn. Crim. App. LEXIS 893, at *3.

       Petitioner argues that trial counsel’s failure to listen to the preliminary hearing

tape constituted deficient performance which resulted in prejudice to the petitioner.

We disagree. The trial court found that counsel’s representation of petitioner was

“outstanding,” and this Court is bound by that finding unless the evidence

preponderates otherwise. Henley v. State, 960 S.W.2d at 578.

       In any event, petitioner has not established prejudice. On direct appeal, this

Court held that a mistrial was not mandated, implicitly concluding that defendant

was not denied his right to a fair trial. Furthermore, the trial court fully instructed the

jurors as to the misunderstanding. Petitioner has not established that the alleged

error deprived him of his right to a fair trial.

       This issue is without merit.




                                             6
                       B. Mutual Combat Jury Instruction

       Petitioner also asserts that counsel was ineffective for failing to request a

special jury instruction on mutual combat. He maintains that, under the law that

existed at the time of the commission of the offense, a homicide committed during

mutual combat is voluntary manslaughter. See Cooper v. State, 356 S.W.2d 405,

411 (Tenn. 1962). He argues that the evidence supports an instruction on mutual

combat, and trial counsel was ineffective for failing to request such an instruction.

       “Mutual combat has been defined as ‘one into which both parties enter

willingly, or in which two persons, upon a sudden quarrel, and in hot blood, mutually

fight.’” State v. Johnson, 909 S.W.2d at 464 (quoting Black’s Law Dictionary 266

(6th ed. 1990)). Mutual combat is not a statutory defense, but may constitute

“provocation” which would reduce the degree of homicide. Johnson, 909 S.W.2d

at 464 (citations omitted).

       However, the evidence in this case would not support an instruction on

mutual combat. See, e.g., State v. Bennett, 798 S.W.2d 783, 790 (Tenn. Crim.

App. 1990). The state’s theory was that even though the victim had a gun tucked

into his pants, he had his hands in the air at the time he was shot. Furthermore,

petitioner testified at trial that he did not try to shoot the victim. None of the

testimony at trial gives rise to an inference that the parties engaged in “mutual”

fighting prior to the victim being shot. An instruction on mutual combat was

unnecessary. Therefore, counsel was not deficient for failing to request such an

instruction.

       Nevertheless, petitioner was not prejudiced by the failure to request an

instruction on mutual combat. At the time the offense was committed, a homicide

committed during mutual combat was voluntary manslaughter, Cooper v. State, 356

S.W.2d at 411, and the jury was properly charged as to voluntary manslaughter.

The jury obviously found that the victim’s actions did not constitute adequate




                                         7
provocation which would reduce the homicide to voluntary manslaughter. Petitioner

has suffered no prejudice.

       This issue is without merit.

                                   C. Sentencing

       In his next issue, petitioner contends that counsel was ineffective for failing

to submit the sentencing hearing transcript as part of the record on direct appeal.

On direct appeal, petitioner argued that his sentence of fifty-five (55) years was

excessive. However, because the sentencing hearing transcript was not included

in the record, this Court was precluded from considering the issue on its merits and

deemed the issue waived. State v. Robert Burns, No. 89-117-III, 1989 Tenn. Crim.

App. LEXIS 893, at *3-4. Petitioner claims that there is a reasonable probability that

this Court would have reduced his sentence had the issue been determined on its

merits. Therefore, he asserts that counsel was deficient, and he suffered prejudice

as a result.

       Assuming, arguendo, that counsel was deficient for failing to submit the

transcript of the sentencing hearing on direct appeal, we are not persuaded that

petitioner’s sentence would have been modified. Petitioner was properly sentenced

under the 1982 Sentencing Act.2 See Tenn. Code Ann. § 40-35-101, et. seq.

(1982). Under the 1982 Act, petitioner was sentenced as a Range II offender, as

he was adjudged to be an especially aggravated offender.                An “especially

aggravated offense” is “[a] felony resulting in death or bodily injury or involving the

threat of death or bodily injury to another person where the defendant has

previously been convicted of a felony that resulted in death or bodily injury.” Tenn.

Code Ann. § 40-35-107(1) (Supp. 1987). Because the present offense was second

degree murder and petitioner had a prior conviction of voluntary manslaughter, he

properly qualified as an especially aggravated offender.

       Furthermore, defendant had an extensive criminal history, including various




       2
       This offense was committed prior to the effective date of the Criminal Sentencing
Reform Act of 1989, and petitioner was also sentenced prior to its effective date.

                                           8
misdemeanors, assault on a police officer with the intent to commit a felony and

being a convicted felon in possession of a firearm, all in addition to his prior

conviction for voluntary manslaughter. Moreover, defendant had a prior probation

revocation in 1984.

       During the sentencing hearing, the trial court noted defendant’s lengthy

criminal history in addition to his conviction for voluntary manslaughter. The trial

court also recognized that defendant had a previous probation revocation. Both of

these are appropriate enhancement factors under the 1982 Sentencing Act. Tenn.

Code Ann. § 40-35-111(1), (8) (1982). The trial court then enhanced petitioner’s

sentence from the minimum thirty-five (35) years to fifty (50) years.

       Our review of the record indicates that the trial court properly considered the

sentencing principles, and petitioner received an appropriate sentence.            We,

therefore, conclude that petitioner has failed to establish that he was prejudiced as

a result of counsel’s failure to submit the sentencing hearing transcript as part of the

record on direct appeal.

       This issue is without merit.

                                      D. Venue

       Petitioner finally insists that counsel was deficient on appeal for failing to

challenge the sufficiency of the evidence regarding venue. He contends that there

is no evidence that the homicide occurred in Maury County; thus, he would have

received a new trial had counsel raised the issue.

       This issue was not raised in the petition for post-conviction relief nor at the

hearing on the petition. This Court has appellate jurisdiction only. Tenn. Code Ann.

§ 16-5-108(a). Issues not raised in the petition for post-conviction relief cannot be

raised for the first time on appeal. A post-conviction petition “must necessarily rest

upon and be determined by the factual allegations it contains.” Long v. State, 510

S.W.2d 83, 85 (Tenn. Crim. App. 1974). This issue is, therefore, waived.

       Regardless, our review of the transcript indicates that venue was established

by a preponderance of the evidence. The evidence showed that the homicide




                                           9
occurred at Fuller’s residence on Bear Creek Pike. A Tax Assessor’s map was

introduced at trial which shows that Bear Creek Pike is in Maury County.

Furthermore, the jury was properly charged as to venue.           Petitioner has not

established that he was prejudiced by counsel’s alleged deficiency.

       This issue has no merit.



                                   CONCLUSION



       The record fully supports the trial court’s determination that petitioner

received effective assistance of counsel. Accordingly, the judgment of the trial court

is affirmed.




                                                  LEE MOORE, SPECIAL JUDGE



CONCUR:




JOE G. RILEY, JUDGE




CURWOOD WITT, JUDGE




                                         10
