           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                        SEPTEMBER 1998 SESSION
                                                     November 4, 1998

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

SCOTTIE DEWAYNE BURKE,           )
                                 )    C.C.A. NO. 03C01-9709-CR-00419
           Appellant,            )
                                 )    HAMILTON COUNTY
VS.                              )
                                 )    HON. DOUGLAS A. MEYER,
STATE OF TENNESSEE,              )    JUDGE
                                 )
           Appellee.             )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:


LISA M. MACK                         JOHN KNOX WALKUP
846 Oak St.                          Attorney General & Reporter
Chattanooga, TN 37403
                                     ELIZABETH B. MARNEY
                                     Asst. Attorney General
                                     425 Fifth Ave., North
                                     2nd Floor, Cordell Hull Bldg.
                                     Nashville, TN 37243-0493

                                     WILLIAM H. COX, III
                                     District Attorney General

                                     CALDWELL HUCKABAY
                                     Asst. District Attorney General
                                     Courts Bldg., Room 300
                                     Chattanooga, TN 37402




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                             OPINION



                   The petitioner was convicted by a jury of first-degree felony murder,

aggravated robbery, and aggravated assault.1 He was sentenced to life imprisonment

for the murder, a concurrent eight year term for the robbery, and a consecutive six year

term for the assault. The petitioner's convictions and sentences were affirmed on direct

appeal. State v. Scottie Dewayne Burke, No. 03C01-9208-CR-00265, Hamilton County

(Tenn. Crim. App. filed June 10, 1993, at Knoxville). In this petition for post-conviction

relief filed in August 1995, the petitioner contends that he received ineffective assistance

of counsel at trial and on direct appeal. 2 The court below denied relief and, upon our

review of the record, we affirm.



                   In this appeal, the petitioner contends that his lawyer was ineffective in the

following ways:

                   1. Failing to properly investigate the case;

                   2. Failing to sufficiently voir dire prospective jurors, thereby
                   accepting a juror who had “prior knowledge” about the
                   petitioner which may have been used to “taint” other jurors;

                   3. Failing to contest the admissibility of the petitioner's
                   statement to the police;

                   4. Failing to object to the trial court's instruction on voluntary
                   manslaughter; and

                   5. Failing to defend and appeal the petitioner's sentences in
                   a competent manner.

After hearing testimony from the petitioner and his trial counsel (who also handled the

direct appeal), the court below credited trial counsel's testimony over the petitioner's. As



        1
            The crimes were committed in 1991; the petitioner was tried in 1992.

        2
          Although unclear, the amended petition also seems to raise as a separate constitutional
violation that the petitioner's confession was coerced. The court below found that no evidence had been
introduced in support of this allegation. Other than in the context of ineffective assistance, this alleged
grou nd fo r relief is not ass erted in this a ppe al.

                                                     2
a result, the court below found that, while trial counsel had made some errors during the

trial and on appeal, the petitioner had not carried his burden of proving the allegations in

his petition, that his lawyer's performance was within the required range of competence,

and that, even if it were not, the petitioner failed to prove that he was thereby prejudiced.



              In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney are within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This Court should

not second-guess trial counsel’s tactical and strategic choices unless those choices were

uninformed because of inadequate preparation, Hellard v. State, 629 S.W.2d 4, 9 (Tenn.

1982), and counsel should not be deemed to have been ineffective merely because a

different procedure or strategy might have produced a different result. Williams v. State,

599 S.W.2d 276, 280 (Tenn. Crim. App. 1980). To prevail on a claim of ineffective

counsel, a petitioner “must show that counsel’s representation fell below an objective

standard of reasonableness” and that this performance prejudiced the defense. There

must be a reasonable probability that but for counsel’s error the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694

(1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



              In post-conviction relief proceedings the petitioner has the burden of proving

the allegations in his petition by clear and convincing evidence. T.C.A. § 40-30-210(f).

Furthermore, the factual findings of the trial court in hearings “are conclusive on appeal

unless the evidence preponderates against the judgment.” State v. Buford, 666 S.W.2d

473, 475 (Tenn. Crim. App. 1983).



              The petitioner's claim that his trial attorney did not sufficiently investigate


                                             3
his case is based on trial counsel's failure to interview certain State witnesses. None of

these witnesses testified at the post-conviction hearing, however. Thus, we have no

proof of how these witnesses' testimony could have been made less harmful to the

petitioner had they been previously interviewed by trial counsel. In other words, the

petitioner has failed to prove how he was prejudiced by his lawyer's handling of these

witnesses. This issue is without merit.



              With respect to counsel's voir dire of the jury, the record contains no proof

whatsoever of how the juror who allegedly knew the petitioner wrongfully influenced the

jury with his “prior knowledge.” No prejudice having been shown from trial counsel's

failure to remove this juror, this issue is without merit.



              As to the petitioner's statement to the police, he admitted at the post-

conviction hearing that he had not informed his lawyer of any circumstances surrounding

the statement which would have supported its exclusion. Accordingly, his lawyer did not

act incompetently by not challenging the statement's admissibility.



               As to the trial court's instruction on voluntary manslaughter, the court below

concluded that trial counsel should have requested a correction and, failing that, should

have raised the issue on appeal. We agree. In its instruction on voluntary manslaughter,

the trial court stated:

              The distinction between voluntary manslaughter and second
              degree murder is that voluntary manslaughter requires that
              the killing resulted from a state of passion produced by
              adequate provocation sufficient to lead a reasonable person
              to act in an irrational manner . . . and the act of killing will be
              imputed to heat of blood and passion, rather than malice, if
              no undue advantage be taken by the party doing the killing.
              [e.s.]

Thus, the trial court improperly implied that malice was an element of second-degree



                                              4
murder.3



                  Criminal defendants have a constitutional right to a correct and complete

charge of the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). A constitutional

violation occurs upon an erroneous jury instruction unless the error is harmless beyond

a reasonable doubt. State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989). Where

the error is harmless beyond a reasonable doubt, however, it follows that trial counsel's

failure to object to the erroneous instruction did not prejudice the petitioner.



                  In this case, the trial court further instructed the jury:

                  If you so find the defendant guilty of murder in the first
                  degree . . . it would not be necessary for you to consider the
                  lesser offenses of murder in the second degree, voluntary
                  manslaughter, and criminal negligent homicide. However, if
                  you find the defendant not guilty of murder in the first degree,
                  you will then determine whether you find the defendant guilty
                  beyond a reasonable doubt of any one of the following
                  offenses:
                         Murder in the Second Degree
                         Voluntary Manslaughter
                         Criminally Negligent Homicide [e.s.]

Juries are presumed to follow instructions. State v. Blackmon, 701 S.W.2d 228, 233

(Tenn. Crim. App. 1985). Thus, because the jury convicted the petitioner of first-degree

felony murder, it never considered the instructions on second-degree murder or voluntary

manslaughter. Any error was therefore harmless beyond a reasonable doubt and the

petitioner suffered no prejudice from his lawyer's inaction. See, e.g., State v. Antonio M.

Byrd, No. 02C01-9508-CR-00232, Shelby County (Tenn. Crim. App. filed January 2,

1997, at Jackson) (where jury convicted the defendant of premeditated murder after

having been instructed to consider premeditated murder before felony murder, erroneous

instruction on felony murder was “mere surplusage” and error was harmless beyond a




       3
           “Second degree murder is: A know ing killing of another.” T.C.A. § 39-13-210(a)(1) (1991).

                                                    5
reasonable doubt). This issue is without merit.4



                     In his final issue, the petitioner contends that his lawyer did not adequately

represent him at his sentencing hearing and did not adequately appeal his sentences. 5

He complains that his lawyer “did not present any witnesses for sentencing, did not argue

[as a] mitigating factor [the] Petitioner[']s age [of] 18 years old at the time of the incident,

[introduced] no evidence about Petitioner's low IQ and did not verify the accuracy of

Petitioner's prior record as represented in the sentencing report.” He argues that he was

thereby prejudiced “by reducing the probability of a lighter sentence.”



                     We first note that, because the State did not seek the death penalty, the life

sentence imposed for the first-degree murder conviction was statutorily required. See

T.C.A. § 39-13-204 (1991). Moreover, the sentence for the aggravated robbery was the

minimum for that crime6 and was run concurrently; obviously, trial counsel could not have

improved on this. Apparently, then, the petitioner is convinced that he should have

received a shorter and/or concurrent sentence on the aggravated assault offense.7



                     In considering the petitioner's sentences on direct appeal, this Court

examined the record at trial and held that “the record justifies the trial court's

determination under T.C.A. § 40-35-115(b)(4) that the defendant is a dangerous offender


          4
        In his brief, the petitioner attempts to raise this jury instruction issue as a separate ground for
post-conviction relief. However, it was not raised as such in his petition nor was it raised on direct
appeal. Accordingly, other than in the context of ineffective assistance of counsel, this issue has been
waived. T.C.A. § 40-30-206(g).

          5
         W e consider the petitioner's sentencing issues only in the context of his claim of ineffective
assistance of counsel. Without an allegation that a sentence is void or voidable because of the
abridgement of a constitutional right, sentencing issues are not reviewable in a post-conviction
procee ding. See T.C.A. § 40-30-203.

          6
        The applicable range for this offense was eight to twelve years. T.C.A. §§ 40-35-112(a)(2), 39-
13-402(b).

          7
              The applicable range for this offense was three to six years. T.C.A. §§ 40-35-112(a)(3), 39-13-
102(d).

                                                        6
whose behavior indicates little or no regard for human life and no hesitation about

committing a crime in which the risk to human life is high for the purposes of ordering the

aggravated assault sentence to be run consecutively.” State v. Scottie Dewayne Burke,

No. 03C01-9208-CR-00265, Hamilton County (Tenn. Crim. App. filed June 10, 1993, at

Knoxville). The petitioner presented no proof at the hearing below which demonstrated

that his attorney could have prevented this classification. Accordingly, his complaint

about the consecutive sentence on the assault conviction is without merit.



              As to the length of the sentence on the assault offense, the trial court

enhanced the range to the maximum time of six years after finding that the assault had

been committed while the petitioner was on probation. See T.C.A. § 40-35-114(13)(c).

On direct appeal, this Court further found from the trial record that he had committed

delinquent acts as a juvenile and that the aggravated assault had resulted in particularly

great injuries. Both of these factors could properly have been used to enhance the

petitioner's sentence on the aggravated assault offense. See T.C.A. § 40-35-114(1) &

(6). The petitioner has failed to show that he had sufficient mitigating proof at his

disposal to counteract the enhancement of his sentence. This issue is without merit.



              The judgment below is affirmed.



                                                 ______________________________
                                                 JOHN H. PEAY, Judge


CONCUR:



__________________________________
JOSEPH M. TIPTON, Judge



__________________________________
DAVID G. HAYES, Judge

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