                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                                  FILED
                                 AT KNOXVILLE                                    July 20, 1999


                             JANUARY 1999 SESSION                              Cecil Crowson, Jr.
                                                                           Appe llate Court
                                                                                Clerk



JERRY LEE CRAIGMIRE                      *       C.C.A. No. 03C01-9710-CR-00440

        Appellant,                       *       KNOX COUNTY

vs.                                      *       Hon. Richard Baumgartner, Judge

STATE OF TENNESSEE,                      *       (Post-Conviction)

        Appellee.                        *



For Appellant:                           For Appellee:

Mark E. Stephens                                 John Knox Walkup
District Public Defender                 Attorney General and Reporter
1209 Euclid Avenue                       425 Fifth Avenue North
Knoxville, TN 37921                      Nashville, TN 37243-0493

Paula R. Voss                            Elizabeth B. Marney
Assistant Public Defender                        Assistant Attorney General
1209 Euclid Avenue                       Criminal Justice Division
Knoxville, TN 37921                      425 Fifth Avenue North
                                                 Nashville, TN 37243-0493
John Halstead
Assistant Public Defender                        Robert Jolley
1209 Euclid Avenue                       Assistant District Attorney General
Knoxville, TN 37921                      City-County Building
                                 Knoxville, TN 37902




OPINION FILED:



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                OPINION



                  The petitioner, Jerry Lee Craigmire, appeals the Knox County Criminal Court’s

dismissal of his petition for post-conviction relief. On appeal, the petitioner raises the following issues

for our review:

                  1.      Whether his conviction as an habitual offender
                          violated the doctrine of collateral estoppel.

                  2.      Whether the trial court’s instructions to the jury at the
                          conclusion of the petitioner’s habitual crim trial
                                                                       inal
                          shifted the burden of proof to the petitioner, thereby
                          violating his right to due process.

                  3.      Whether the actions of the trial court and the
                          prosecutor during closing argum     ents in the
                          petitioner’s habitual criminal trial denied the petitioner
                          the effective assistance of counsel, due process, and
                          a fair trial.

                  4.      Whether the petitioner’s counsel was ineffective at
                          trial and on direct appeal in failing to raise the issues
                          relating to collateral estoppel and the petitioner’s
                          closing argument.

Following a thorough review of the record and the parties’ briefs, we affirm the judgm of the post-
                                                                                      ent

conviction court.



                                       I. Factual Background

                  On Novem 16, 1987, a Knox County jury found the petitioner guilty of one count of
                          ber

larceny and one count of receiving stolen property. The petitioner’s convictions arose fromhis theft of

a woman’s purse and his contemporaneous possession of a stolen car. These convictions were the

triggering offenses underlying the prosecution of two counts of the petitioner’s indictment, charging him

with being an habitual criminal. The jury acquitted the petitioner of being an habitual crim with
                                                                                            inal

respect to the larceny conviction. W respect to the petitioner’s conviction for receiving stolen
                                    ith

property, the jury was unable to reach a verdict, and the court declared a mistrial. Following a second




                                                      2
mistrial, a jury finally returned a guilty verdict on February 8, 1989.1 In accordance with the habitual

crim statutes, the petitioner received a sentence of life im
    inal                                                    prisonment in the Tennessee Department

of Correction for the offense of receiving stolen property.



                   At the petitioner’s February 8, 1989, habitual criminal trial, the State introduced into

evidence indictments and judgments of conviction reflecting that, in addition to the triggering offense of

receiving stolen property, Jerry Lee Craigmire had previously been convicted on March 18, 1982, of

attempting to pass a forged prescription on a day in January, 1981, and receiving stolen property on

January 2, 1981. The indictments and judgments also reflected that, on March 18, 1982, Jerry Lee

Craigmire had been convicted of the following offenses pursuant to his pleas of guilt: receiving stolen

property in February, 1981; receiving stolen property and second degree burglary in April, 1981; two

counts of receiving stolen property and two counts of second degree burglary in M 1981; three
                                                                                 ay,

counts of second degree burglary and one count of the sale of credit cards by a person other than the

issuer or issuee in June, 1981; and one count of first degree burglary in October, 1981. For these

offenses, the petitioner had received an effective sentence of eleven to twenty-five years incarceration

in the Tennessee Department of Correction. The State additionally introduced the testimony of

Charles Coleman, a Lieutenant with the Knoxville Police Department, who testified that the petitioner

was the same Jerry Lee Craigmire who had committed the triggering offense and the fourteen prior

offenses. The petitioner presented no proof. The record reflects that the jury returned a verdict of guilt

following three minutes of deliberation.



                   On direct appeal, the petitioner challenged the sufficiency of the evidence supporting

his conviction for receiving stolen property; the adequacy of the jury’s verdict of guilt as stated by the

jury forem and, with respect to the petitioner’s conviction of the habitual criminal charge, the trial
          an;



         1
            The reco rd ref lects that th e Ho nora ble Jo hn J. Dun can , Jud ge, p resid ed ov er the petitio ner’s
trial for the s ubs tantiv e offe nse s and the p etition er’s fir st thre e hab itual c rimin al trials . The Hon orab le
Ran dall E . Nich ols, J udg e, co ndu cted the p etition er’s fin al hab itual c rimin al trial, w hich resu lted in his
conviction.

                                                             3
court’s failure to grant a continuance to the petitioner based upon the State’s failure to provide a

written list of predicate convictions in advance of trial. This court affirmed the petitioner’s convictions.

State v. Craigm No. 1262, 1990 W 29736 (Tenn. Crim. App. at Knoxville, March 22, 1990).
               ire,             L



                 On June 5, 1991, the petitioner filed a petition for post-conviction relief. On June 17,

1991, the post-conviction court appointed the public defender to represent the petitioner, and the

petitioner submitted an amended petition. The post-conviction court conducted a hearing on July 23

and 25, 1997. At the hearing, the petitioner asserted numerous grounds for relief, including the

following:

        1.       Whether the petitioner’s habitual criminal conviction violated the
                 doctrine of collateral estoppel.

        2.       Whether the trial court’s instructions to the jury during the petitioner’s
                 habitual criminal trial shifted the burden of proof to the petitioner,
                 violating his right to due process.

        3.       Whether the prosecutor engaged in misconduct during the petitioner’s
                 habitual criminal trial by objecting during the petitioner’s closing
                 argum that the “jury has no right to ignore the law ... .”
                       ent

        4.       Whether the trial court erroneously restricted the petitioner’s closing
                 argument in the habitual criminal trial, denying the petitioner due
                 process of law.

        5.       Whether the petitioner’s counsel was ineffective at trial and on direct
                 appeal.




                 At the hearing, the petitioner testified. H conceded that his criminal record included
                                                            e

the fourteen prior convictions upon which the State relied in the habitual criminal proceedings. He

further testified that the parties presented the same evidence and the same arguments in both habitual

crim proceedings. Additionally, the post-conviction court questioned the petitioner’s trial counsel,
    inal

Byron Bryant, concerning his closing argument in the petitioner’s final habitual criminal trial. Mr. Bryant

testified that, during closing argument, he attempted to argue that the habitual criminal statutes should

not apply in the petitioner’s case. The trial court prohibited M Bryant from engaging in this argument
                                                                r.


                                                      4
and threatened to hold Mr. Bryant in contempt of court if he persisted.



                 Mr. Bryant conceded that he did not challenge on direct appeal the trial court’s

limitations upon his closing argument or challenge the petitioner’s habitual criminal conviction on the

basis of double jeopardy. He explained that his legal research revealed several Tennessee Supreme

Court cases which were directly contrary to those arguments. He concluded, “I did the best I could.”



                 At the conclusion of the hearing, the post-conviction court made the following

observations:

                 [I]t is pretty clear to me from this argum that this is not an
                                                            ent
                 ineffective assistance of counsel. ... Mr. Bryant did everything he
                 could humanly do. He raised all these issues that you have raised,
                 made all those argum     ents to the Court, and did them forcefully.

Subsequently, on September 5, 1997, the post-conviction court dismissed the petition for post-

conviction relief. In a memorandumopinion, the court again concluded that the petitioner had received

competent representation and additionally concluded that the trial court’s limitations upon the

petitioner’s closing argument in his habitual criminal trial did not constitute a denial of due process.



                                              II. Analysis

A.      Collateral Estoppel

                 The petitioner first contends that his habitual crim conviction violates the doctrine
                                                                     inal

of collateral estoppel. The petitioner did not raise this issue on direct appeal, thereby waiving the

issue. Post-conviction relief is generally not available to litigate issues that have been waived. Tenn.

Code. Ann. § 40-30-111 (1991). However, the petitioner also argues that his attorney was ineffective

on direct appeal in failing to raise this issue. In this context, we m determ whether appellate
                                                                      ust    ine

counsel’s failure to raise this issue was below the range of competence demanded of attorneys in

crim cases, Baxter v. Rose, 523 S.W 930, 936 (Tenn. 1975), and whether this failure was
    inal                           .2d

prejudicial. Strickland v. Washington, 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069 (1984). See



                                                     5
also Powers v. State, 942 S.W.2d 551, 557 (Tenn. Code. Ann. 1996). Because the petitioner must

establish both ineffective performance and prejudice in order to prevail on a claim of ineffective

assistance of counsel, we need not evaluate counsel’s performance if the petitioner has not

established prejudice. Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997), cert. denied,           U.S.     ,

119 S.Ct. 82 (1998). In order to ascertain if appellate counsel’s performance was prejudicial, we must

address the merits of the issue neglected on appeal.2



                 Citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970), the petitioner argues

that principles of collateral estoppel precluded his conviction as an habitual criminal in this case. In

essence, the petitioner asserts that, when the jury acquitted the petitioner of the habitual criminal

charge relating to his larceny conviction, the jury necessarily decided the issue of the petitioner’s

habitual criminal status with respect to the conviction for receiving stolen property.



                 In Ashe, 397 U.S. at 445-446, 90 S.Ct. at 1195, the United States Suprem Court held
                                                                                         e

that the doctrine of collateral estoppel is embodied in the Fifth Amendm guarantee against double
                                                                        ent

jeopardy. State v. Vickers, 985 S.W.2d 1, 7 (Tenn. Crim. App. 1997), perm. to appeal denied, (Tenn.

1998); State v. McKennon, No. 01C01-9710-CC-00456, 1998 W 849287, at **2-4 (Tenn. Crim. App.
                                                         L

at Nashville, Decem 3, 1998). The Court explained that “‘collateral estoppel’ ... means simply that
                   ber

when an issue of ultimate fact has once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90

S.Ct. at 1194. The petitioner bears the burden of demonstrating that the issue he seeks to foreclose

fromconsideration was necessarily decided in the first trial. Dowling v. United States, 493 U.S. 342,



        2
          We note that, although the post-conviction court concluded generally that the petitioner
received the effective assistance of counsel, the post-conviction court did not explicitly address the
petitioner’s c ollateral esto ppel issu e in its mem orandu m opinio n dismis sing the p etition for pos t-
conviction relief. Tenn. Code. Ann. 40-30-118(b) (1991) required that the post-conviction court set
forth in an order or written memorandum of the case all grounds presented and state the findings of
fact a nd co nclu sion s of la w w ith reg ard to each suc h gro und . How eve r, failur e to a bide b y this
requirem ent does not alwa ys ma ndate a r eversa l of the post-c onviction court’s jud gmen t. Rickman v.
State , 972 S.W .2d 687, 6 92 (Ten n. Crim. A pp. 1997 ). We co nclude th at the reco rd of the po st-
convic tion proce edings is sufficient to effe ctuate m eaningfu l appellate re view. Id.

                                                      6
350, 110 S.C 668, 673 (1990). See also Vickers, 985 S.W.2d at 7-8 (“the burden is on the appellant
            t.

to prove by clear and convincing evidence that, in the earlier trial, the court or a jury necessarily

decided the issue of fact which is an element at issue in the present indictment”).



                 In determining whether the petitioner has m this burden, a court must engage in a
                                                            et

two-part inquiry. See, e.g., United States v. Gil, 142 F.3d 1398, 1401 (11th Cir. 1998). First, a

reviewing court must “‘examine the record of a prior proceeding, taking into account the pleadings,

evidence, charge, and other relevant matter ... ” in order to see what facts, if any, were necessarily

determined by an acquittal at the first trial. Ashe, 397 U.S. at 444, 90 S.Ct. at 1194; Gil, 142 F.3d at

1401. Second, a court must determine whether the previously determined facts constitute an essential

element of the prosecution currently under consideration. Gil, 142 F.3d at 1401. If the previously

determined facts constitute an essential element of the subsequent prosecution, collateral estoppel will

completely bar the subsequent prosecution. Vickers, 985 S.W.2d at 7.



                 Because the doctrine of collateral estoppel is embodied in the Fifth Amendment

guarantee against double jeopardy, we initially note that our suprem court has held that the double
                                                                    e

jeopardy provisions of the state and federal constitutions do not generally preclude a second trial and

conviction under the habitual criminal statutes if a defendant is convicted of a second triggering

offense. Pearson v. State, 521 S.W 225, 227 (Tenn. 1975). In so holding, our suprem court
                                  .2d                                              e

observed that “the habitual criminal statutes do not create an independent crime, but define and

prescribe a status” permitting the enhancem to life im
                                           ent        prisonment of the penalty for violating one of

the prescribed felonies. Id. Moreover, contrary to the petitioner’s argument in his brief, the occurrence

of two triggering convictions on the same day followed by dual habitual criminal prosecutions does not

generally implicate principles of double jeopardy. Whether a defendant is convicted of two triggering

offenses on the same day or on successive days, habitual criminality is a vehicle for the enhancement

of punishment, not a separate offense, and jeopardy does not attach. Id. See also Moore v. State,

563 S.W.2d 215, 217 (Tenn. Crim. App. 1977)(citing Pearson and the habitual crim statutes, this
                                                                                inal


                                                     7
court affirmed two separate, consecutive life sentences imposed following one trial for triggering

offenses committed at the same time and place and on the sam occasion).
                                                            e



                 Accordingly, we are directly confronted with the question of whether our supreme

court’s holding in Pearson precludes application of the doctrine of collateral estoppel to successive

habitual criminal prosecutions. We conclude that it does not. “Collateral estoppel applies in criminal

proceedings independent of double jeopardy principles, and one need not be twice placed in jeopardy

of criminal punishm for collateral estoppel to apply.” 50 C.J.S. Judgments § 919(a) (1997). The
                   ent

Seventh Circuit Court of Appeals explained:

                 The government’s argument assumes that because collateral
                 estoppel is “embodied” in the Double Jeopardy Clause, estoppel is
                 co-extensive with the Double Jeopardy Clause’s other protections.
                 Thus, the government asks us to hold that collateral estoppel can
                 never apply in circumstances where double jeopardy does not. Such
                 a holding would eliminate collateral estoppel from criminal cases and
                 overrule Ashe. A criminal defendant has no need for the benefits of
                 issue preclusion if his entire prosecution is barred by double jeopardy
                 ... . Precisely contrary to the government’s assertion,
                 collateral estoppel is applicable in criminal cases only
                 when double jeopardy is not.

United States v. Bailin, 977 F.2d 270, 275 (7th Cir. 1992)(emphasis added). See also United States v.

Shenberg, 89 F.3d 1461, 1479 (11th Cir. 1996); State v. Butler, 505 N.W 2d 806, 809 (Iowa 1993);
                                                                       .

State v. Chase, 588 A.2d 120, 122-124 (R 1991); Ex Parte Tarver, 725 S.W.2d 195, 197 (Tex. Crim.
                                        .I.

App. 1986). But see United States v. Miller, 797 F.2d 336, 341 (6th Cir. 1986). But cf. Vickers, 985

S.W.2d at 7-8.



                 Accordingly, relying upon the doctrine of collateral estoppel, the petitioner in this case

argues that, in the petitioner’s first habitual crim trial, the jury necessarily determined by its acquittal
                                                    inal

that the fourteen prior convictions presented by the State did not render the petitioner an habitual

criminal. He analogizes his case to Ashe, arguing that the single, dispositive, factual issue before the

jury during the first trial was whether the petitioner possessed the requisite num of prior
                                                                                  ber

convictions. Thus, according to the petitioner, it makes no difference that the triggering offense in


                                                     8
each habitual criminal proceeding was different. The jury’s acquittal following the first habitual criminal

trial collaterally estopped the State’s prosecution of the second count using the same prior

convictions.3



                     In Ashe, three or four masked men robbed at gunpoint six men engaged in a poker

game. Ashe, 397 U.S. at 437-438, 90 S.C at 1191. The petitioner, along with three other m was
                                       t.                                                en,

charged with six separate counts of armed robbery of each of the six poker players. Id. at 438, 1191.

The State first tried the petitioner for the armed robbery of one of the poker players, and the jury

acquitted the petitioner. Id. at 438-439, 1191-1192. Six weeks later, the State tried the petitioner for

the arm robbery of another poker player, and the jury returned a guilty verdict. Id. at 439-440, 1192.
       ed

The Court observed that, at the first trial, the “single rationally conceivable issue in dispute before the

jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he

had not.” Id. at 445, 1195. Accordingly, the Court concluded that the petitioner’s second trial was

precluded by the doctrine of collateral estoppel. Id. The Court further explained that it did not matter

that the second trial involved a different victim, because “the name of the victim, in the circumstances

of this case, had no bearing whatever upon the issue of whether the petitioner w one of the
                                                                                as

robbers.” Id. Similarly, the petitioner would argue that the name of the triggering offense in his case

had no bearing upon the issue of whether he possessed a sufficient num of prior convictions to be
                                                                      ber

an habitual offender.4



                     Thus, we must determine if the only factual issue before the jury at the first habitual

criminal trial, which resulted in an acquittal, was the number of the petitioner’s prior convictions under


          3
          If the p etition er ha d bee n con victe d follo wing the firs t hab itual c rimin al trial, th e Sta te co uld
have relied upon the same prior convictions in successive habitual criminal prosecutions, consistent
with the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Tennessee
Cons titution. Pearson, 521 S.W.2d at 228.

          4
           While the petitioner claims that this was the sole issue at the first habitual criminal trial and
that the same evidence was presented in both habitual criminal proceedings, the petitioner did not
challeng e his prior c onviction s during th e seco nd proc eeding. Also, as noted earlier, at the post-conviction
hearing the petitioner testified that, at the time of his trials in this case, his record did in fact include the fourteen prior
convictions relied upon by the State.

                                                                 9
the habitual criminal statutes. However, w note that the transcript of the petitioner’s first habitual
                                          e

criminal trial is not before this court. Again, under Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, a court

must review the record of the prior proceedings in order to determine if the doctrine of collateral

estoppel is applicable. The petitioner bears the burden of demonstrating the doctrine’s applicability.

Dowling, 493 U.S. at 350, 110 S.C at 673; Vickers, 1997 WL 370357, at *5. The petitioner also
                                 t.

carries the burden of ensuring that the record on appeal conveys a fair, accurate, and complete

account of what has transpired with respect to those issues that are the bases of appeal. Tenn. R.

App. P. 24(b). See also Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App.), perm. to appeal

denied, (Tenn. 1997). The failure to do so ordinarily results in a waiver of such issues. Id.



                 The deficiency of the record w addressed at the post-conviction hearing. At the
                                               as

hearing, the State speculated that during the petitioner’s first habitual criminal proceeding the jury was

confused about whether larceny, in contrast to receiving stolen property, could trigger the habitual

crim statutes pursuant to Tenn. Code. Ann. § 39-1-802 (R
    inal                                                epealed Novem 1, 1989)(listing the
                                                                     ber

offenses which trigger the habitual criminal statutes). In other words, the State asserted that the jury’s

acquittal following the first trial was based upon a legal issue unrelated to the legal and factual issues

presented during the second habitual criminal proceeding. The petitioner’s post-conviction attorney

responded:

                 Judge, as to that explanation, obviously, I wasn’t there, and that is not
                 a part of the record in these cases or part of the transcript that was
                 prepared, because he wasn’t appealing from that proceeding. So, if
                 the Court is going to consider that, I wasn’t aware that was going to
                 be the argum that there w a legal technicality as to why they
                                ent               as
                 acquitted on one, but not the other. I would ask that first proceeding
                 be transcribed, if in fact that is what the Court is going to rely on.

The State then conceded that the record of the prior proceeding would not confirm or refute the State’s

theory. With respect to the State’s theory, the post-conviction court merely observed, “[T]hat is one

feasible explanation. There m be others. I mean, who knows what the jury was thinking.” O the
                             ay                                                          n

basis of this exchange, petitioner’s post-conviction counsel did not pursue supplementation of the

record.


                                                    10
                 As noted earlier, however, the petitioner did testify at the post-conviction hearing that

the parties presented the same evidence and the sam arguments during both habitual criminal
                                                   e

proceedings. The State did not contest the petitioner’s assertion. The record of the second

proceeding is before this court. However, we conclude that the petitioner’s testimony is alone

insufficient to satisfy his burden to demonstrate that, in the earlier trial, the jury necessarily decided an

issue of fact. Dowling, 493 U.S. at 350, 110 S.C at 673; Vickers, 1997 WL 370357, at *5.
                                                t.



                 Moreover, we reject any assertion that, under the particular circumstances of this

case, the record is sufficient as it stands, because the only factual issue that is ever before the jury in

an habitual criminal proceeding is whether a defendant possesses the requisite number of predicate

convictions. See 39-1-801 (Repealed 1989). See also Moultrie v. State, 584 S.W.2d 217, 219 (Tenn.

Crim. App. 1978)(“[t]he only function of the jury in such cases is to hear proof on prior convictions of a

defendant, upon charges constituting felonies under the statute, and to determine if a defendant’s

record of recidivism warrants enhanced punishment as prescribed”). In other words, we reject the

argum that a jury’s acquittal of a defendant on a charge of habitual crim
     ent                                                                 inality will per se

collaterally estop the State from prosecuting a second habitual criminal charge if the State relies upon

the exact same prior convictions in both proceedings.



                 In an habitual crim proceeding, a jury is in fact confronted with m than one
                                    inal                                            ore

factual issue. The applicable pattern jury instructions provide that, in order to find that a defendant is

an habitual criminal, a jury m find the following essential elements beyond a reasonable doubt:
                              ust

                 1.       the defendant has been convicted of at least three
                          felonies ... prior to conviction for the present offense;

                 2.       at least three of the prior felony convictions were for
                          separate offenses, committed at different tim and
                                                                          es,
                          on separate occasions;

                 3.       not less than two of these three prior convictions
                          were for the crimes of (nam crimes charged) ... ;
                                                      e

                 4.       the defendant was charged in the present indictment


                                                     11
                           with the commission of the crime of (name crime),
                           and was convicted of it;

                  5.       the defendant must have been charged with being an
                           habitual criminal in a separate count of the present
                           indictment.

T.P.I. Crim. No. 32.01 (1988)(footnotes omitted). The first three elements relate to the validity of the

prior convictions under the habitual criminal statutes. However, the jury m also find that the
                                                                           ust

petitioner w convicted of the triggering offense and that the habitual criminal charge was contained
            as

in a separate count of the indictment. While these two factual issues would rarely, if ever, be disputed,

it is conceivable that a jury could lawfully return a verdict of acquittal despite its finding that a

defendant possessed the requisite number of prior convictions under the habitual criminal statutes.



                  The Supreme C in Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, warned against a
                               ourt

technically restrictive application of the doctrine of collateral estoppel. See also United States v.

Leach, 632 F.2d 1337, 1340 (5th Cir. 1980)(the m fact that a jury could technically have acquitted
                                                ere

the defendant without resolving the factual issue asserted by the defendant did not bar the application

of the doctrine of collateral estoppel). Nevertheless, in the absence of the record of the first habitual

criminal proceeding, we decline to apply the doctrine in this case.




                  Additionally, the record before this court suggests that the petitioner’s defense counsel

was effectively permitted to argue jury nullification in the petitioner’s first three habitual criminal trials.

A defendant may not essentially argue to the jury at trial that it should ignore the facts because the law

is unfair and then on appeal in a subsequent case contend that the jury’s acquittal necessarily decided

a factual issue. Cf. State v. Blache, 480 So.2d 304, 309 (La. 1984)(if the acquittal in the first trial had

been against the weight of the evidence, the jury’s exercise of its power of nullification might have

precluded application of the doctrine of collateral estoppel). Contrast Gil, 142 F.3d at 1401 n. 4 (the

possibility of jury nullification cannot enter into the analysis of courts making collateral estoppel



                                                       12
inquiries); Leach, 632 F.2d at 1341 (a court should not consider the possibility of jury nullification in

applying the doctrine of collateral estoppel). In any case, for the reasons set forth above, this issue is

without merit.



B.      Jury Instructions

                 The petitioner next complains that the trial court’s instructions to the jury during the

second habitual criminal proceeding shifted the burden of proof to the petitioner, thereby violating his

right to due process.5 The trial court instructed the jury:

                 Records of prior convictions of the defendant are evidence which you
                 may consider of only as proof that he is in fact an habitual criminal as
                 that termhas been defined above. A judgm of conviction of any
                                                               ent
                 person under the same nam as that of the defendant creates an
                                               e
                 inference that the identity of such person is the sam as the
                                                                      e
                 defendant.

The petitioner cites our supreme court’s decision in Lowe v. State, 805 S.W.2d 368 (Tenn. 1991), in

support of his argument.



                 The State contends, in turn, that the petitioner has waived this argum due to his
                                                                                       ent

failure to raise this issue on appeal. However, the supreme court’s decision in Lowe was issued on

February 25, 1991. The petitioner was convicted of being an habitual criminal on February 8, 1989,

and this court affirmed his convictions and sentences on March 22, 1990. This court has previously

held that, under these circumstances, this issue remains a viable ground for post-conviction relief.

See, e.g., Jones v. State, 891 S.W.2d 228, 230 (Tenn. Crim. App. 1994); Hopson v. State, No. 03C01-

9212-CR-00449, 1993 W 360719, at *2 (Tenn. Crim. App. at Knoxville, September 10, 1993). But
                     L

see Jones, 891 S.W.2d at 231-232 (Tipton, J., concurring)(opining that this ground for relief was

available well before the supreme court’s decision in Lowe). In any case, this issue is without merit.



                 Tenn. Code. Ann. § 39-1-804 (Repealed November 1, 1989), provided:


        5
         The post-conviction court additionally neglected to address this issue in its memorandum
opinion dis missing the petition for post-co nviction re lief.

                                                     13
                 [A] judgment of conviction of any person in this state, or any other
                 state, country or territory, under the same nam as that by which
                                                                 e
                 such person is charged with the commission, or attempt at
                 commission, of a felony under the terms of this chapter, shall be
                 prima facie evidence that the identity of such person is the same.

In Lowe, 805 S.W at 371, the Supreme Court held that the trial court’s instruction to the jury
                .2d

pursuant to this section impermissibly shifted the burden of proof to the defendant in violation of due

process. However, the supreme court declined to strike down the statutory provision as

unconstitutional per se, further holding that a jury instruction pursuant to this statutory provision could

pass constitutional muster if phrased in term of a perm
                                             s         issive inference. Id.



                 In this case the trial court offered the following explanation to the jury:

                 The Court has charged the jury concerning a certain inference that
                 the jury may make in regard to certain evidence in this case.
                 However, the jury is not required to make this inference. It is the
                 exclusive province of the jury to determine whether the facts and
                 circum stances shown by all the evidence in the case warrant the
                 inference w hich the law permits the jury to draw.

                 The inference m be rebutted by direct or circumstantial evidence, or
                                   ay
                 both, whether it exists in the evidence of the State or is offered by the
                 defendant, and the burden of proof remains, as always, upon the
                 State to prove beyond a reasonable doubt each and every element
                 that constitutes the offense before the defendant can be convicted.

                 Although not required by law to do so, when the defendant offers
                 proof of an explanation to rebut the inference thus raised, you should
                 consider such proof, along with all the evidence, to determine not only
                 the correctness of the inference, but the reasonableness of the
                 defendant’s explanation.

                 You are not bound to accept either and, as aforesaid, the burden of
                 proving guilt of the offense charged beyond a reasonable doubt is
                 upon the State.

We conclude that the trial court’s instructions to the jury satisfied the due process requirements of both

the federal and state constitutions.



C.      Closing Argument

                 The petitioner further argues that, in the second habitual crim proceeding, the
                                                                                inal



                                                     14
actions of the trial court and the prosecutor during closing arguments denied the petitioner a closing

argum prejudiced the jury, and shifted the burden of proof to the petitioner, thereby denying the
     ent,

petitioner the effective assistance of counsel, due process, and a fair trial. Again, the petitioner failed

to raise this issue on direct appeal and now alleges that his appellate counsel’s omission constituted

ineffective assistance. In order to evaluate the prejudicial impact of appellate counsel’s performance,

we will address the merits of this issue. Henley, 960 S.W.2d at 580.6



                    The petitioner specifically contends that the trial court erroneously precluded his

attorney frommaking the following arguments in closing:

                    Ladies and gentlemen, you looked at the records that were entered.
                    Everyone of these offenses occurred in 1981. The record is silent on
                    any offenses on him other than this receiving stolen property that he
                    was convicted on in November of 1987.

                                                              ***

                    Ladies and gentlemen, there are lots of things that you can use to
                    look at in this matter - the records that have been entered here - and
                    you can use your ow sense of freedom justice, and fair play in this.
                                           n                   ,
                    Ladies and gentlemen, I ask you: Is it fair for a person to be
                    sentenced to serve a life sentence?

He asserts that, because he was precluded from making the above arguments, “the court and state

deprived [the petitioner] of any meaningful closing argument ... .” In connection with his claim that he

was denied a closing argument, the petitioner also contends that the prosecutor’s objection to his

closing argument constituted prosecutorial misconduct. Moreover, the petitioner contends that, in light

of the limitations placed upon his closing argum the State’s rebuttal argum was improper.
                                                ent,                       ent

Finally, the petitioner argues that the conduct of the prosecutor and the trial court shifted the burden of

proof to the petitioner, denying himdue process of law.



                    Following the post-conviction hearing, the post-conviction court made the following


          6
            We no te that, with re spect to this issue, th e petitioner’s brief conta ins inade quate c itation to
authority pursuant to Tenn. R. App. P. 27 and Ct. of Crim. App. Rule 10, rendering the task of this court more difficult.
Generally, this deficiency results in waiver of the issue before this court. Ct. of Crim. App. Rule 10(b). Nevertheless, in the
interests of justice and in order to afford the petitioner a full hearing, we will address the merits of this issue.

                                                               15
findings of fact and conclusions of law:

                The gravam of [the petitioner’s] com
                             en                           plaint in this prosecution for
                habitual offender status w that his lawyer was not allowed to argue
                                            as
                that it was unfair to sentence this individual to prison for life for a
                relatively minor felony offense; that is, receiving stolen property.

                 The record, of course, establishes that he had the requisite number of
                 previous convictions to place him in the status of being an habitual
                 offender, and under the law in effect at the tim he was eligible to be
                                                                 e,
                 considered an habitual offender.

                 His lawyer had successfully, on two prior occasions, argued to a jury
                 that this was the only offense that he had had in a number of years;
                 that it was a relatively minor offense, and that they should not send
                 Mr. Craigmire to prison for the rest of his life for this offense of
                 receiving stolen property.

                 Those trials ended in a m  istrial. He was retried then in 198[9] before
                 Judge N   ichols. At the urging of [the prosecutor], the Court
                 admonished [defense counsel] not to make, basically, a jury-
                 nullification argum ent.

                 During the course of [defense counsel’s argument] ... objections were
                 made by the State and, apparently, sustained by the Court, although
                 we do not have the benefit of the bench conference that took place.
                 We do not have that on record. But I think everybody w  ould agree
                 that the Court adm onished himand threatened even to hold himin
                 contempt, if he continued in that argument.

                 The argument, essentially, was that it just was not fair to send this
                 man to prison for the rest of his life for committing what would amount
                 to, basically, a class-E felony. For what its worth, my personal
                 opinion is that he probably shouldn’t get life in prison for committing a
                 class-E felony. But that was not the law in effect at the time.

                 It is clear to m in reviewing the cases, that it is not appropriate to
                                 e,
                 argue jury nullification to the jury. ... I would not allow him to argue
                 that they were allowed to disregard the law, but I think I would have
                 allowed himto argue that this was a relatively m offense. But, in
                                                                      inor
                 essence, he got to do that during his closing argument, although it
                 was very brief.

                 In conclusion, I am of the opinion that there w not denial of due
                                                                as
                 process. There w no denial of effective assistance of counsel in
                                   as
                 this case.

These findings of fact are conclusive on appeal unless this court finds that the evidence preponderates

against the findings of the post-conviction court. Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1997).



                                                    16
                 i. Denial of Closing Argument

                 As noted earlier, the petitioner contends that the trial court effectively denied him a

closing argument by sustaining the State’s objections during his attorney’s presentation. In Herring v.

New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 2553 (1975), the United States Suprem Court held that
                                                                                 e

the right to the assistance of counsel includes the right of counsel for the defense to make a closing

summation to the jury. See also Patty v. Bordenkircher, 603 F.2d 587, 589 (6th Cir. 1979)(the trial

court’s refusal to permit defense counsel in an habitual criminal trial to make a final argument

constituted a denial of the right to counsel). A trial court’s refusal to permit closing argument is

reversible error per se. See, e.g., United States v. Davis, 993 F.2d 62, 64 (5th Cir. 1993)(“[g]iven the

difficulty of determining the prejudicial impact of the failure to afford summation, the denial of a request

for it is reversible error per se); Patty, 603 F.2d at 589 (the rule announced in Herring is a per se rule,

precluding harmless error analysis); United States v. Bowden, 579 F. Supp. 337, 343 (M.D. Tenn.

1982), affirmed, 723 F.2d 911 (1983)(“it would have been reversible error per se to have denied [the

defendant] an opportunity to m any closing argument at all”).
                              ake



                 However, the Court in Herring, 422 U.S. at 862, 95 S.Ct. at 2555, also observed:

                 This is not to say that closing arguments in a criminal case must be
                 uncontrolled or even unrestrained. The presiding judge must be and
                 is given great latitude in controlling the duration and limiting the scope
                 of closing summations. He m limit counsel to a reasonable time
                                                 ay
                 and may terminate argument when continuation would be repetitive or
                 redundant. He may ensure that argument does not stray unduly from
                 the mark, or otherwise impede the fair and orderly conduct of the trial.
                 In all these respects he must be given broad discretion.

See also State v. Nesbit, 978 S.W.2d 872, 900 (Tenn. 1998), cert. denied, 1999 WL 181566 (U.S.

1999)(trial courts are accorded wide discretion in controlling closing arguments). Thus, in Bowden,

579 F. Supp. at 343-344, the federal district court denied the defendant’s motion for new trial,

concluding that the court had properly forbidden defense counsel from“arguing the law” during closing

argument. The court observed:

                 “Because it is the court’s function and duty to instruct the jury on the
                 controlling law [it is] the better practice ... , of course, ... that any


                                                     17
                 argum ents of this type be lim solely toward demonstrating how the
                                               ited
                 evidence, or reasonable inferences therefrom conform to the law ... .”
                                                             ,

Id. at 344 (citation omitted).



                 It is apparent from the record in this case that the trial court similarly limited defense

counsel to arguing how the evidence or reasonable inferences therefrom conformed to the law. It is

equally apparent in this case that there w no question that the petitioner possessed the requisite
                                          as

number of prior convictions to establish his status as an habitual criminal and that the State otherwise

adduced sufficient proof at trial to support all the elements of the charged offense. Accordingly, as

noted by the post-conviction court, the petitioner’s real complaint is that, because he was in fact guilty

of being an habitual offender, he was left with nothing to argue in closing except jury nullification, which

argum the trial court prohibited.
     ent



                 ii. Jury Nullification

                 In other words, despite the petitioner’s protestations, we agree with the post-

conviction court that the excluded argument constituted an attempt by defense counsel to prompt jury

nullification. As noted earlier, the State was required to establish beyond a reasonable doubt that the

petitioner had been convicted of a triggering offense; the habitual criminal charge was contained in a

separate count of the indictment; and the petitioner had previously been convicted of three felonies, as

prescribed by statute. Tenn. Code. Ann. § 39-1-801 to -803 (Repealed Novem 1, 1989).
                                                                          ber

Therefore, the defense attorney’s references to the num of intervening years between the prior
                                                       ber

convictions and the triggering offense and the absence of additional offenses during those intervening

years were not relevant to any issue at the habitual criminal trial other than the possibility of

nullification. Rather, defense counsel was clearly attempting to argue that the petitioner had not

committed a crime in several years and that, therefore, the jurors should exercise compassion

notwithstanding the harsh mandates of the habitual criminal statutes.7 Similarly, defense counsel’s


        7
        Following the petitioner’s habitual criminal trial, the trial court observed that he had sustained
the prosecutor’s objection to defense counsel’s statement concerning the silence of the record on

                                                     18
query to the jury concerning the fairness of imposing a life sentence was, in the context of this case

and in light of defense counsel’s failure to point to any deficiency in the proof, an invitation to the jury

to exercise its de facto power of nullification.



                   A trial court not only has the discretion to control closing argum but a duty to
                                                                                     ent

prevent improper argument. Arguments by counsel must be based upon the evidence introduced at

trial. State v. Tate, No. 02C01-9605-CR-00164, 1997 W 746441, at *10 (Tenn. Crim. App. 1997).
                                                     L

Moreover, confusing or irrelevant arguments should not be permitted. Id. On the basis of these

guidelines and the following discussion, we conclude that the trial court correctly prohibited defense

counsel fromarguing jury nullification. To the extent that defense counsel’s argum was further
                                                                                  ent

limited by the evidence adduced at trial, this limitation was certainly no fault of the trial court.



                   A defendant does not possess a constitutional right, whether pursuant to the due

process provisions of the state and federal constitutions or embodied in those documents’ guarantees

of a right to a trial by an impartial jury, to place the issue of jury nullification before a jury in a criminal

trial. Thus, Tennessee courts have upheld refusals by trial courts, in response to defendants’

requests, to informjuries that they may disregard the applicable law in reaching a verdict. See, e.g.,

State v. Taylor, 771 S.W.2d 387, 397 (Tenn. 1989); Janow v. State, 567 S.W.2d 483, 485 (Tenn. Crim.

App. 1978). Moreover, in State v. West, No. 182, 1988 WL 13559, at *1 (Tenn. Crim. App. at

Knoxville, February 22, 1988), a case arising under the habitual criminal statutes, this court additionally

rejected the propriety of evidence and argum by a defendant concerning jury nullification:
                                            ent

                   [D]efendants sought to have the jury determ that they were not
                                                               ine
                   deserving of a life sentence even though the record clearly shows
                   they were habitual criminals as defined by statute. In effect the
                   defendants wanted to convince the jury by irrelevant evidence,


offenses committed during the intervening years, because the statement was misleading. The trial
court noted that, at the time of his habitual criminal trial, the petitioner was being prosecuted for
offenses committed during the intervening years, including grand larceny, possession of a controlled
sub stan ce, a nd bu rglar y. W e con clud e tha t the tr ial cou rt’s lim itation of clo sing argu men t on th is bas is
was not unduly restrictive. As noted subseq uently, the petitioner was permitted to argue briefly that
the prior convictions occurred in 1981 and the triggering offense occurred in 1987. Furthermore, the
absence of intervening criminal conduct was only relevant to the possibility of jury nullification.

                                                           19
                   instruction, and argument to ignore relevant facts, law, and evidence
                   and to return a not guilty verdict in this phase of the trial. This is not
                   proper ... .

Again, in State v. Shropshire, 874 S.W 634, 639 (Tenn. Crim App. 1993), this court noted that “a
                                      .2d                  .

trial court cannot be held in error for prohibiting a defendant fromadvising a jury not to follow the law

as the trial court instructs it.”



                   This issue is often articulated in terms of a limitation upon juries’ rights notwithstanding

their de facto power of nullification. In Wright v. State, 394 S.W.2d 883 (Tenn. 1965), another case

arising under the habitual crim statutes, five jurors filed affidavits following the defendant’s
                               inal

conviction stating that they felt the defendant’s prior convictions were not serious enough to make the

defendant an habitual criminal. Id. at 884. They explained that they had voted to convict the

defendant, because, as they understood the charge of the court, if the defendant had been convicted

of crimes as defined in the habitual criminal statutes, there was nothing else for themto do. Id. at 885.

The Suprem Court responded, “As a matter of fact they didn’t have the right to disregard what the
          e

legislature had defined as making an habitual offender.” Id. at 885 (emphasis added). Just as the

jury’s de facto power of nullification is not a “right” of the jury, the power confers no constitutional rights

upon defendants.



                   Tennessee case law is consistent with the early United States Supreme Court case of

Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273 (1895). In that case, Justice Harlan stated:

                   [U]pon principle, where the matter is not controlled by express
                   constitutional or statutory provisions, it cannot be regarded as the
                   right of counsel to dispute before the jury the law as declared by the
                   Court....8 We m hold firm to the doctrine that in the courts of the
                                    ust          ly
                   United States it is the duty of juries in criminal cases to take the law
                   fromthe court, and apply that law to the facts as they find themto be
                   from the evidence.



         8
        The sta te cons titutions of India na and Maryla nd prov ide that jurors are judge s of law an d fact.
Therefore, trial courts in those states instruct jurors on the “prerogative” of nullification and
presum ably defe nse co unsel arg ues ac cording ly. People v. Douglas, 680 N.Y .S. 2d 145 , 150 n.1
(N.Y. App. Div. 1998).

                                                       20
                                                    ***

                 Under any other system the courts, although established in order to
                                          ,
                 declare the law, would for every practical purpose be eliminated from
                 our system of government as instrum      entalities devised for the
                 protection equally of society and of individuals in their essential rights.
                 When that occurs our governm will cease to be a government of
                                                  ent
                 laws, and become a governm of m Liberty regulated by law is
                                                ent       en.
                 the underlying principle of our institutions.

Id. at 102-103, 293 (footnote added).



                Other jurisdictions have applied this principle in addressing the question of whether a

defendant possesses a constitutional right to propose nullification to a jury during closing argument.

Thus, in Medley v. Commonwealth, 704 S.W.2d 190, 191 (Ky. 1985), a Kentucky court held that, in a

prosecution under Kentucky’s persistent felon statute, a defendant did not have the right to argue in

closing that the jury could disregard the law if it believed that the minimumpenalty was too severe. In

United States v. Brown, 548 F.2d 204, 210 (7th Cir. 1977), the Seventh Circuit Court of Appeals held

that the trial court properly precluded defense counsel from addressing in closing argum the
                                                                                        ent

historical role of the jury as the conscience of the community. The court observed that allowing this

argum in the context of that case “w
     ent                            ould have been an invitation to the jury to disregard the

instructions of the court; as such it was clearly improper.” Id. In United States v. Sepulveda, 15 F.3d

1161, 1190 (1st Cir. 1993), the First Circuit Court of Appeals observed:

                [W]hile jurors may choose to flex their muscles, ignoring both law and
                evidence in a gadarene rush to acquit a criminal defendant, neither
                the court nor counsel should encourage jurors to exercise this power.
                ... A trial judge, therefore, may block defense attorneys’ attempts to
                serenade a jury with the siren song of nullification.

                 ... To the extent that appellants, during closing argum managed to
                                                                        ent,
                 mention nullification, they received m than was their due.
                                                         ore

See also People v. Moore, 662 N.E.2d 1215, 1231 (Ill. 1996)(a defendant has no right to argue

nullification to the jury); State v. Bjerkaas, 472 N.W.2d 615, 620 (Wis. Ct. App. 1991)(a defendant has

no right to encourage jury nullification during closing argument).




                                                     21
                 In any case, as noted by the post-conviction court, the petitioner w effectively
                                                                                     as

permitted to argue nullification, albeit briefly. Defense counsel argued the following without objection:

                 Ladies and Gentlemen, you are the sole triers of the facts and
                 circumstances of this case. You have to go back there and
                 deliberate, and m up your minds whether Mr. Craigmire is to
                                    ake
                 receive a life sentence for receiving stolen property, or whether he is
                 to be allowed to be sentenced by Judge Nichols. Sentence between
                 three and ten years in the State pentitentiary.

                                                    ***

                 Ladies and gentlemen, all these things happened in 1981. Then he is
                 convicted of receiving stolen property in 1987. Ladies and
                 Gentlem three to ten years in the State Penitentiary is enough for
                         en,
                 anyone to serve for a receiving stolen property.

Thus, contrary to the petitioner’s argum he received “more than was [his] due.” W conclude that
                                        ent,                                     e

the trial court’s limitations upon the petitioner’s closing argument did not deprive the petitioner of the

effective assistance of counsel, due process, or a fair trial by an impartial jury.



                 iii. Prosecutorial Misconduct

                 In a similar vein, the petitioner also challenges the prosecutor’s objection to defense

counsel’s query, “Is it fair for a person to be sentenced to serve a life sentence?” In the jury’s

presence, the prosecutor argued to the court that “[t]he jury has no right to ignore the law in this

particular case. . . . That is exactly what Mr. Bryant is asking themto do.” Having already concluded

that the petitioner’s argum constituted an appeal for jury nullification, we decline to find that the
                           ent

prosecutor engaged in misconduct by objecting to the argument. Defense counsel opened the door to

the prosecutor’s objection with his improper argument. See, e.g., State v. Duke, No. 89-74-III, 1989

WL 111204, at *4 (Tenn. Crim. App. at Nashville, September 27, 1989).



                 Additionally, even assum that the petitioner established prosecutorial m
                                         ing                                             isconduct,

he was still required to demonstrate to the post-conviction court that the improper conduct prejudicially

affected the verdict in his case. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965); Judge v.

State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). The petitioner argues that the prosecutor’s


                                                     22
statem that the jury “has no right to ignore the law” and the trial court’s curative instruction
      ent

effectively directed a verdict of guilt. In response to the prosecutor’s objection, the trial court instructed

the jury:

                  Ladies and gentlemen, I would instruct you: You are to have no
                  sympathy and prejudice. Look alone to truth and justice, and a fair
                  verdict rendered, according to the law and the evidence as presented.
                  That is what you are to base your decision on. I will tell you here in
                  just a few minutes.

                  Proceed.



                  First, we note that both the prosecutor’s objection and the trial court’s instruction were

correct statements of the law. In State v. Williamson, 919 S.W.2d 69, 80 (Tenn. Crim. App.

1995)(citation omitted), this court observed that it is, in fact,

                  the duty of the jury to apply the law contained in the charge of the trial
                  court to the ultimate facts determined by the jury. ... “It is the duty of
                  the court to direct the jury what the law is, and it is the duty of the jury
                  to apply it, under the direction of the court, ... to the facts in evidence.
                  They must treat it as applicable to the facts, and apply it as they
                  determine the facts to be.”

Second, it is undisputed that the State overwhelmingly proved the petitioner’s habitual criminal status.

Thus, the only way in which the prosecutor’s objection and the ensuing instruction could have

prejudiced the petitioner was by inhibiting the jury in the exercise of its de facto power of nullification.

We have already concluded that the petitioner possesses no right to jury nullification nor does the jury

possess any right to disregard the instructions of the trial court as to the applicable law.



                  Sim y, we do not agree that the prosecutor’s own reference to fairness during his
                     ilarl

rebuttal argument constituted misconduct or prejudicially affected the verdict in the petitioner’s case.

The prosecutor argued in rebuttal:

                  [Defense counsel] w    ould say: Is it fair to sentence himfor that? W   ell,
                  was it fair for him to victimize all these people, or do we have a
                  responsibility? W have a responsibility to follow the law, our oath,
                                      e
                  our responsibility to members of the com       munity, so that there are
                  people other than victims in these cases.



                                                       23
We initially note that the petitioner did not object to the State’s rebuttal argument at trial. Moreover, the

prosecutor was again responding to the petitioner’s jury nullification argument. The bounds of proper

argum are established by the facts in evidence, the character of the trial, and the conduct of
     ent

opposing counsel. State v. Seay, 945 S.W.2d 755, 763 (Tenn. Crim. App. 1996). See also Nesbit,

978 S.W.2d at 901. Within these bounds, the prosecution may point out the gravity of a particular

crim and em
    e      phasize the importance of law enforcement. Coker v. State, 911 S.W.2d 357, 368 (Tenn.

Crim. App. 1995). Applying these standards, the prosecutor’s rebuttal argum was appropriate and
                                                                           ent

did not deprive the petitioner of due process and a fair trial. Moreover, as noted above, the

prosecutor’s statements did not prejudicially affect the outcom of the petitioner’s trial.
                                                               e



                 iv. Burden of Proof

                 Finally, the petitioner asserts that, generally, the conduct of the prosecutor and the

trial court during closing arguments shifted the burden of proof to the petitioner. In essence, the

petitioner argues that, because the prosecutor and the trial court informed the jury that it m apply
                                                                                              ust

the law as instructed by the trial court to the facts as found by the jury, he was denied due process.

We simply note that courts have upheld similar jury instructions. For example, in United States v.

Kyzyske, 836 F.2d 1013, 1021 (6th Cir. 1988), in response to jurors’ inquiries during deliberation

concerning nullification, the court responded:

                 There is no such thing as valid jury nullification. Your obligation is to
                 follow the instructions of the Court as to the law given to you. You
                 would violate your oath and the law if you wilfully brought in a verdict
                 contrary to the law given to you in this case.

Id. The Sixth Circuit Court of Appeals, noting the trial court’s duty to uphold the law and to apply it

impartially, concluded that the instruction was appropriate. See also United States v. Boardman, 419

F.2d 110, 116 (1st Cir. 1969)(“jurors may have the power to ignore the law, but their duty is to apply

the law as interpreted by the court, and they should be so instructed”); United States v. Dougherty, 473

F.2d 1113,1131-1138 (D.C. Cir. 1972)(the existence of the de facto power of jury nullification has co-

existed for many years with the legal practice and precedent upholding instructions to the jury that they



                                                    24
are required to follow the instructions of the court on the law and apply the law to the facts); Farina v.

United States, 622 A.2d 50, 61 (D.C. Ct. App. 1993)(an instruction that the jury must find the

defendant guilty if it finds that the government has proven every element of the offense beyond a

reasonable doubt is not a directed verdict); People v. Douglas, 680 N.Y.S.2d 145, 151 (N.Y.App.Div.

1998)(because courts have a duty to prevent improper nullification conduct, the trial court properly

instructed the jury of its duty to convict the defendant if the State had proven the elements of the crime

beyond a reasonable doubt); State v. Meggyesy, 958 P.2d 319, 321-322 (Wash. Ct. App.), review

denied, (Wash. 1998)(trial courts do not invade the province of the jury or otherw violate a
                                                                                  ise

defendant’s right to trial by jury in instructing juries that it is their duty to return a verdict of guilt if they

find that each element of a crime has been proven beyond a reasonable doubt). But see State v.

Lowrence, No. 1, 1991 W 44219, at **3-4 (Tenn. Crim. App. at Jackson, April 3, 1991)(the court
                       L

noted that it found no authority for a trial judge to instruct the jury that it has “no option” but to follow

the law).



                  We conclude that attempts by the prosecutor and the trial court to prevent defense

counsel fromencouraging jury nullification did not shift the burden of proof to the petitioner or direct a

verdict in this case. Instead, the actions of the prosecutor and the trial court ensured that the jury

properly applied the laws of this state, including those pertaining to the burden of proof in a criminal

trial. In fact, the trial court repeatedly instructed the jury that the burden of proof rested with the State.

Of course, the trial court also instructed the jury that it should base its verdict upon the evidence and

the law presented. Contrary to the petitioner’s argum the burden of proof does not shift to a
                                                     ent,

crim defendant m
    inal        erely because the evidence and the law presented establish his guilt.



                                               III. Conclusion

                  For the foregoing reasons, we affirm the judgm of the post-conviction court
                                                                ent

dismissing the petition for post-conviction relief.




                                                         25
                                      Norma McGee Ogle, Judge




CONCUR:




James Curwood Witt, Jr., Judge




John K. Byers, Senior Judge




                                 26
