            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                           AUGUST 1998 SESSION
                                                       October 23, 1998

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
DANNY RAY MEEKS,                   )
                                   )   C.C.A. NO. 01C01-9709-CC-00387
            Appellant,             )
                                   )   GRUNDY COUNTY
VS.                                )
                                   )   HON. J. CURTIS SMITH,
STATE OF TENNESSEE,                )   JUDGE
                                   )
            Appellee.              )   (Post-Conviction)



FOR THE APPELLANT:                     FOR THE APPELLEE:


EDWARD L. BORING                       JOHN KNOX WALKUP
P.O. Box 381                           Attorney General & Reporter
Pikeville, TN 37367
    (On Appeal)                        TIMOTHY F. BEHAN
                                       Asst. Attorney General
MARION C. FORDYCE                      John Sevier Bldg.
Washington Square, Suite 500           425 Fifth Ave., North
222 Second Ave., North                 Nashville, TN 37243-0493
Nashville, TN 37201
   (At Hearing)                        J. MICHAEL TAYLOR
                                       District Attorney General

                                       THOMAS D. HEMBREE
                                              -and-
                                       STEVEN BLOUNT
                                       Asst. District Attorneys General
                                       265 Third Ave., Suite 300
                                       Dayton, TN 37321




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              In August 1990, a jury convicted the petitioner of aggravated kidnapping,

especially aggravated robbery, aggravated burglary, and extortion. The petitioner

received an effective sentence of forty-eight years in the Department of Correction. The

petitioner appealed, and this Court affirmed the petitioner’s convictions and sentence in

August 1993. See State v. Meeks, 867 S.W.2d 361 (Tenn. Crim. App. 1993)(permission

to appeal denied Nov. 1, 1993). The petitioner filed his petition for post-conviction relief

on October 6, 1994, alleging thirty-two grounds for relief. The petitioner twice amended

his petition to allege an additional twenty-five grounds for relief. After hearing evidence

on the issues raised by the petition, the trial court filed a memorandum opinion dismissing

the petition in August 1997. One month later, the trial court filed an addendum to its

opinion. The petitioner now appeals, raising the following issues for review:

       I. Whether trial counsel was ineffective for failing to challenge the arrest
       warrant for lack of probable cause because it did not contain a proper
       signature by the issuing magistrate?

       II. Whether trial counsel was ineffective for failing to challenge the search
       and seizure of the petitioner’s automobile?

       III. Whether trial counsel was ineffective for failing to challenge the
       issuance of the search warrant of the petitioner’s residence?

       IV. Whether trial counsel was ineffective for failing to challenge for cause
       a juror who knew the victim of the crime?

       V. Whether trial counsel was ineffective for failing to act as an “active
       advocate” by not properly investigating the case and deciding not to call a
       certain defense witness?

       VI. Whether trial counsel was ineffective for engaging in an intimate
       relationship with the petitioner’s wife, who was also a co-defendant in the
       case?

       VI. Whether trial counsel was ineffective for failing to challenge variances
       between the proof and the indictment?

       VII. Whether the trial court improperly concluded that the victim suffered
       “serious bodily injury” when considering the petitioner’s motion for judgment

                                             2
       of acquittal, which deprived the petitioner of a fair trial?

       VIII. Whether the trial court’s instruction to the jury on the definition of
       “reasonable doubt” deprived the petitioner of a fair trial in violation of the
       Eighth and Fourteenth Amendments?

       IX. Whether the trial court’s failure to instruct the jury on all lesser included
       offenses deprived the petitioner of a fair trial?

       X. Whether the trial court deprived the petitioner of a fair trial by failing to
       properly apply and enumerate the enhancement factors and failing to
       indicate it was following the guidelines of the sentencing act?

After considering the parties’ appellate briefs, the facts contained in the record, and the

applicable law, we affirm.



              The petitioner cites six reasons why his trial counsel was ineffective. 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). 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).



              First, the petitioner argues that his trial counsel was ineffective because he

failed to challenge the arrest warrant. The petitioner cites several reasons why the arrest

warrant was void and why probable cause did not exist to issue the arrest warrant, but

our disposition of this issue need not concern the intricacies of the petitioner’s argument.

Even assuming that the petitioner’s allegations were true and the arrest warrant was void,

the petitioner has not shown how he was prejudiced because once the State secures an


                                              3
indictment or presentment, any defects emanating from the original arrest warrant are

cured. See, e.g., State v. Campbell, 641 S.W.2d 890, 893 (Tenn. 1982). The petitioner

does not challenge the indictment in this case. Thus, the petitioner is not entitled to relief

on this ground. See Strickland, 466 U.S. at 687-88.



              Next, the petitioner argues that his trial counsel was ineffective for failing

to challenge the search and seizure of the petitioner’s “family vehicle” after the petitioner

and his wife had been arrested. Even assuming his trial counsel was ineffective for failing

to challenge the search and seizure of the automobile, the petitioner has not shown

prejudice. In other words, the petitioner has not shown that but for his trial counsel’s

failure to challenge the search and seizure of the automobile, the result of his trial in this

case would have been different. Without such a showing, the petitioner is not entitled to

relief on this ground. See Strickland, 466 U.S. at 687-88.



              The petitioner also argues that trial counsel was ineffective for failing to

challenge the issuance of the search warrant of the petitioner’s residence. The petitioner

claims the search warrant is void because the issuing party failed to retain a copy of the

warrant. No evidence in the record supports this conclusory statement. The petitioner

also claims that the officer who obtained the search warrant did so by knowingly making

false statements in his affidavit. This issue has been previously determined on direct

appeal in this case. See Meeks, 867 S.W.2d at 364. Moreover, the petitioner claims that

the lapse of time between the crime and the application for a search warrant directly

impacted “the probability that incriminating evidence may be found.” The petitioner

further claims that the search warrant is void because they were not issued by a “neutral

and detached” party and that the issuing party failed to read the entire affidavit word for

word. These are the exact issues raised in one of petitioner’s other cases, State v.



                                              4
Meeks, 876 S.W.2d 121 (Tenn. Crim. App. 1993)(hereinafter Meeks II). In Meeks II, this

Court determined that the petitioner’s arguments lacked merit. From our review---which

is admittedly limited because the record does not contain a copy of the search warrant---it

appears that the search warrant challenged in Meeks II is the same search warrant the

petitioner now claims is void.1 If that is true, then the issues the petitioner raises here

have been previously determined. T.C.A. § 40-30-112(a)(1990). However, even if the

search warrant challenged in Meeks II is different from the search warrant the petitioner

now argues is void, the petitioner has failed to show how he was prejudiced and how the

result of his trial in this case would have been different without the evidence seized from

his residence. As such, the petitioner is not entitled to relief on this ground.                     See

Strickland, 466 U.S. at 687-88.



                Next, the petitioner contends his trial counsel was ineffective for failing to

challenge for cause a juror, Michael J. Perry, who knew the victim of the crime. The

petitioner contends that Mr. Perry misrepresented during voir dire the extent to which he

knew the victim and that he was a biased juror.                    The transcript of the voir dire

proceedings shows that Mr. Perry admitted he knew all of the parties involved on a

“casual” basis, and he repeatedly indicated that he knew nothing about this case, did not

have a preconceived opinion of the petitioner’s guilt or innocence, and would have an

open mind if selected to be a juror. Based on this evidence, the post-conviction court

found that Mr. Perry revealed during voir dire that he knew the defendants and the victim

and that the petitioner failed to present evidence of juror misconduct or ineffective

assistance of counsel in regard to jury selection.



                On appeal, however, the petitioner relies upon more than the transcript to


        1
         The petitioner even appears to admit as much in his appellate brief by arguing that the portion
of this Court’s opinion in Meek s II that addresses the search warrant arguments raised here is wrong.

                                                    5
support his argument. He relies upon a letter written by his sister that he claims conflicts

with the transcript. In the letter, the petitioner’s sister alleges that Mr. Perry knew the

parties better than he intimated during voir dire. This letter was not filed in the record until

after the post-conviction court entered its order, which deprived the post-conviction court

of the opportunity to consider it. Because this Court is not a factfinding court, the letter

is not properly considered as “evidence” on appeal. Further, because the evidence

properly presented to the trial court fails to reflect juror misconduct, ineffective assistance

of counsel, or resulting prejudice to the petitioner, this ground will not afford the petitioner

relief. See Strickland, 466 U.S. at 687-88.



                  Next, the petitioner argues his trial counsel was ineffective for failing to act

as an “active advocate.” As support for this argument, the petitioner claims his attorney

failed to properly investigate this case because he was “acting as an advocate for the

State and working in conjunction with the State to suppress facts and secret witnesses

from the defendant and the technical record.” There is no evidence in the record to

support the petitioner’s notion that his trial counsel was working “in conjunction” with the

State to the petitioner’s detriment. To the contrary, an attorney associated with the

petitioner’s trial counsel and who also worked on the petitioner’s case 2 testified that the

petitioner’s trial counsel kept a voluminous file on this case and logged almost 260 hours

on the case from December 1990 to March 1994, not counting a sixteen-month period

for which the time sheets were missing from the record. During that sixteen-month

period, the petitioner’s trial counsel investigated and worked on the petitioner’s case on

at least forty-six separate days. The trial counsel’s file also indicated that he kept

meticulous and organized records documenting his conversations with and information

about each potential witness discovered during the course of his investigations.


       2
           This attorney testified because the petitioner’s trial counsel died prior to the post-conviction
hearing.

                                                        6
              The petitioner also claims his trial counsel was not an “active advocate”

because he decided not to call a potential alibi witness, Charles Anderson. To this

argument, the post-conviction court found that the attorney’s decision not to call Mr.

Anderson as a witness was a matter of trial strategy because Mr. Anderson’s credibility

was questionable and his testimony would have conflicted with the testimony of the

petitioner and other witnesses in several important regards, to the extent that it could

have undermined the petitioner’s alibi defense. The evidence does not preponderate

against these findings. See Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993)(stating

that the trial court’s findings of fact are conclusive on appeal unless the evidence

preponderates against the judgment). Moreover, there is no evidence in the record to

support the defendant’s implication that his attorney’s decision not to call Mr. Anderson

to the witness stand was an uninformed decision. See Hellard v. State, 629 S.W.2d 4,

9 (Tenn. 1982)(stating that the court should not second-guess trial counsel’s tactical and

strategic choices unless those choices were uninformed because of inadequate

preparation). Thus, this argument will not afford the petitioner relief.



              Next, the petitioner contends his trial counsel was ineffective because he

engaged in an intimate relationship with the petitioner’s wife, who was also a co-

defendant at trial. The petitioner also implies that the prosecuting attorney acted

inappropriately by failing to “reveal promptly to the Court improper conduct of members

of the bar.” Contrary to the petitioner’s claims, the record fails to reflect that his trial

counsel engaged in an intimate relationship with the petitioner’s wife. Moreover, this

argument is not a cognizable constitutional claim for which post-conviction relief may be

granted. See T.C.A. § 40-30-105 (1990).



              Finally, the petitioner claims his trial counsel was ineffective because he



                                             7
failed to challenge variances between the proof and the indictment, which is a challenge

to the sufficiency of the convicting evidence. This argument will not afford the petitioner

relief, however, because the sufficiency of the evidence cannot be reviewed or tested in

a post-conviction proceeding. Gant v. State, 507 S.W.2d 133 (Tenn. Crim. App. 1973).



              In the petitioner’s remaining issues, he alleges several trial court errors that

he claims deprived him of a “constitutional fair trial.” First, the petitioner argues that the

trial court deprived him of a fair trial by “substitut[ing] it’s [sic] own definition of what

constitutes serious bodily injury on the question of a directed verdict of acquittal” on all

indicted counts. It is well-settled that a judgment of acquittal tests only the legal

sufficiency of the evidence. State v. Campbell, 904 S.W.2d 608, 611 (Tenn. Crim. App.

1995). Thus, although the petitioner has attempted to couch this issue in terms of the

trial court’s actions, it is nothing more than an attempt to test the sufficiency of the

convicting evidence. That being so, the petitioner is not entitled to relief because post-

conviction proceedings may not be employed to question, review, or test the sufficiency

of the convicting evidence, see Gant, 507 S.W.2d at 136, and because the convicting

evidence has already been tested on direct appeal, barring this issue as “previously

determined,” see T.C.A. § 40-30-112(a)(1990); see also Meeks, 867 S.W.2d at 369

(concluding that the evidence was sufficient to support all convictions).



              Next, the petitioner contends that the trial court’s instruction to the jury on

the definition of “reasonable doubt” deprived him of a fair trial. The petitioner’s complaint

regarding the “reasonable doubt” instruction is presumed waived because it could have

been raised on direct appeal of this case and was not. See T.C.A. § 40-30-112(b)(1)

(1990). The petitioner does not rebut this presumption by claiming that he did not

knowingly and understandably agree to waive this issue by not raising it on direct appeal.



                                              8
See T.C.A. § 40-30-112(b)(2)(1990). Even so, the petitioner would not be entitled to relief

because the instruction used in this case has been approved as properly conveying “the

jury’s responsibility to decide the verdict based on the facts and the law.” State v.

Nichols, 877 S.W.2d 722, 734 (Tenn. 1994).



                   Next, the petitioner argues that the trial court “denied [him] a fair trial when

it refused to charge all lesser included offenses when the necessary proof was not

offered at trial to establish the greater of the indicted offenses.” The petitioner continues,

“It goes without saying that the indicted offenses were not proven at trial and the Trial

Court charged the jury with only the indicted offenses because it felt that there was

sufficient proof to convict the defendant.” This is the extent of the petitioner’s argument

on this issue,3 which reveals that this issue is nothing more than an attempt to challenge

the sufficiency of the convicting evidence. Thus, the petitioner’s argument must fail. See

Gant, 507 S.W.2d at 137 (stating that post-conviction proceedings may not be employed

to question, review, or test the sufficiency of the convicting evidence).



                   In his last issue, the petitioner contends that the trial court deprived the

petitioner of a fair trial by failing to properly apply and enumerate the enhancement

factors and by failing to indicate it was following the guidelines of the sentencing act. The

petitioner has not rebutted the presumption that he has waived this issue by knowingly

failing to raise it on direct appeal. See T.C.A. § 40-30-112(b) (1990). Even so, the

petitioner fails to allege that the judgment is void or voidable due to a constitutional

violation, thus precluding consideration of this issue in a post-conviction petition. See

T.C.A. § 40-30-105 (1990); Overton v. State, 874 S.W.2d 6 (Tenn. 1994).

         3
          The petitio ner’s argu me nt on this p oint in clud es on e last sent enc e, in w hich he st ates that h is
trial counsel did not object to the trial court’s failure to charge the jury on the lesser included offenses
and that “the District Attorney General took no steps to protect the defendant’s constitutional rights.”
From this langua ge, we c annot dis cern the significanc e the petition er attach es to thes e events
(assum ing, of cou rse, the pe titioner’s uns upporte d statem ent is even true).

                                                           9
              Tacked on to the end of his brief, the petitioner requests this Court to sua

sponte “consider . . . the fact that the State has withheld exculpatory evidence.” It is

unclear what remedy the petitioner seeks from this Court on this ground and what impact

this request would have on the petitioner’s post-conviction relief petition. Even so, the

record contains no evidence to support the petitioner’s claim that the State has withheld

exculpatory evidence.



              Finding no merit to the petitioner’s contentions, the trial court’s dismissal of

the petition for post-conviction relief is affirmed.



                                                   _______________________________
                                                   JOHN H. PEAY, Judge



CONCUR:



______________________________
THOMAS T. W OODALL, Judge



______________________________
L. TERRY LAFFERTY, Special Judge




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