        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                            MARCH SESSION , 1998         May 15, 1998

                                                     Cecil W. Crowson
ROBERT C. BELLAFANT,           )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9705-CC-00183
                               )
      Appe llant,              )
                               )
                               )    MAURY COUNTY
VS.                            )
                               )    HON. JIM T. HAMILTON
STATE OF TENNESSEE,            )    JUDGE
                               )
      Appellee.                )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF MAURY COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

DANIEL J. RUNDE                     JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
P.O. Box 1208
Pulaski, TN 38478                   PETER M. COUGHLAN
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    MIKE BOTTOMS
                                    District Attorney General
                                    P.O. Box 459
                                    Lawrenceburg, TN 38464


OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Petitioner, Robert Carroll Bellafant, appeals pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. He argues (1) That the reasonable doubt

instruction administered at his trial is constitutionally infirm; and (2) that trial and

appellate couns el rende red ineffec tive assista nce. We affirm the judgment of the

trial court.



       The Petitioner was convicted of first degree murder by a Maury C ounty jury

on Augus t 27, 1986 . The S tate had sough t the death penalty, bu t in a sepa rate

sentencing proceeding, the jury sentenced him to life imprisonment.                The

Petitioner filed a direct appe al to this Court and his conviction was affirmed on

November 12, 198 7. State v. Robert C. Bellafant, C.C.A. No. 8 7-102-III, Maury

Coun ty (Tenn. Crim. App, Nashville, Nov. 12, 1987). The Petitioner filed a pro

se petition for p ost-con viction relief on Octob er 24, 19 90. With the assistance of

coun sel, the Petitioner filed an amended petit ion for post-conviction relief on

August 18, 1995. After conducting an evidentiary hearing on December 11,

1996, the trial cour t denied re lief in an orde r entered on Janu ary 8, 1 997. It is

from the trial court’s de nial that the Petitioner n ow app eals.



       The facts of the case as summ arized by a panel of this Court on the direct

appeal are as follows:



        On the evening of January 4, 1986, both the victim and the
   defendant visited Du mp's C afe in Co lumbia , Tenn essee . No words were

                                            -2-
   exchanged between them or hostilities exhibited while they were in the
   cafe. Shortly after the parties left the cafe the defendant was seen
   standing next to the v ictim's truck with a shotgu n. As the victim began to
   back his truck at a rather rapid rate of speed, the defendant fired the
   shotgu n at the victim , and left.

          The defendant e ventually surrendered himself to the police. He
   revealed to several people, including members of law enforcement, that he
   shot and killed the victim. He also admitted that the shotgun shells found
   at the scene of the homicide belonged to him.

          It was established that the shotgun was fired in close proximity to the
   victim. The blast created a large hole in the victim's neck. The actual
   cause of death was exsanguination, or loss of blood.

          The defendant testified the victim had th reaten ed him earlier in the
   evening with a weapon. The defendant, tired of being threatened and
   running from the victim, went to the home of his cousin, obtained a
   shotgun, and returned to the situs of the homicide. The defendant placed
   the weapo n betwe en two cars and waited for the v ictim. T he victim
   event ually appro ache d his truck. W hen he stoppe d, the defe ndant ra n to
   the victim's truck and shot the victim.


Id.



                                         I.



      The Petitioner first argues that the use of the term “m oral c ertainty” as

used in the jury instruction on reasonable doubt impermissibly lowered the

burden of proof constitutionally required in criminal cases, thus d enying his right

to due process of law as guaranteed by the Fifth, S ixth, and F ourteen th

Ame ndme nts to the United States Constitution and Article 1, Section 8 of the

Tennessee Constitution. The Petitioner recognizes that this Court has upheld the

constitution ality of such an instruction, nevertheless, he asserts that we shou ld

reexamine our consideration of this issue.



      The jury instruction used at the Petitioner’s trial is as follows:

                                        -3-
           Rea sona ble doubt is that doubt engendered by an investigation of
   all the proof in the case and an inability, after such investigation to let the
   mind rest ea sily as to the ce rtainty o f guilt. Reasonable doubt does not
   mean a capricious, possible, or imagina ry doubt. Abso lute ce rtainty o f guilt
   is not demanded by the law to convict of any criminal charge, but moral
   certainty is required as to every proposition of proof requisite to constitute
   the offense.


              Our supre me c ourt ha s uph eld the use of jury instructions including

the phrase “m oral certainty,” Carter v. S tate, 958 S.W.2d 620 (Tenn. 1997);

State v. Nich ols, 877 S.W.2d 722, 734 (Tenn.1994), and this Court has

considered and approved the same ins truction on a num ber of occ asions.

Pettyjohn v. State, 885 S.W .2d 364 , 365 (T enn. C rim. App . 1994); State v.

Hallock, 875 S.W.2d 285, 294 (Tenn . Crim. A pp. 199 3); State v. Rodney Corley,

C.C.A. No. 01C01-9608-CR-00336, Davidson County (Tenn. Crim. A pp.,

Nashville,    Sept.    2,   1997 );   Kenn eth     Culp    v.   S tate,   C.C.A.    No.

02C01-9608-CC-00268, Laude rdale Co unty (Te nn. Crim . App., Jackson, July 24,

1997); Terry Sha nnon Kim ery v. State, C.C.A. No. 03C01-9512-CC-00412,

Greene Coun ty (Ten n. Crim . App., Knoxville, Jan. 28, 199 7) perm. to appeal

denied (Tenn. 1997). Although the Petitioner argues that we should “fear not the

flood” but rather should “look to the light and the clear dawn of a ne w day in

jurisprude nce,” we de cline to recon sider th e issue in accord ance w ith our existing

law. This issue ha s no m erit.




                                           II.



       As his second issue, the Petitioner contends that counsel rendered

ineffective a ssistanc e for seve ral reaso ns: (A) T hat app ellate cou nsel failed to



                                          -4-
brief an issue raised on direct appeal regarding the trial court’s prejudicial

comm ents, resu lting in a wa iver; (B) that trial c ounse l failed to requ est a

continuance to secure the testimony of Ronald Rone; (C) that trial counsel

failed to su ppress the Petition er’s statem ent abo ut throwin g his wea pon into

the Duck River; (D) that trial counsel failed to request an investigator and an

indep ende nt psyc holog ical eva luation ; and (E ) that tria l coun sel ina dequ ately

investigated and prepared the Petitioner’s case.



       In determining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produce a reliable res ult. Strickland v. Washington, 466

U.S. 668, 68 7, reh’g denied, 467 U.S. 1267 (1984); Coop er v. State , 849 S.W.2d

744, 74 7 (Ten n. 1993 ); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,

but for counsel’s unreasonable error, the fact find er wou ld have had re ason able

doubt regardin g petitione r’s guilt. Strickland, 466 U.S. at 695. This re ason able

probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



       When reviewing trial couns el’s actions , this court sh ould no t use the benefit

of hinds ight to s econ d-gue ss trial st rategy and c riticize c ouns el’s tactics. Hellard

                                            -5-
v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.



      The hearing on the post-conviction pe tition was held on D ecemb er 11,

1996. One of the Petitioner’s trial attorneys, George Lovell, testified, and the

Petitioner testified. In a post-conviction procee ding un der the A ct applica ble to

this case, a petitioner m ust prove the allegations in the petition by a

preponderance of the evide nce. Davis v. S tate, 912 S.W.2d 689, (Tenn. 199 5);

Adkins v. State, 911 S.W .2d 334 , 341 (T enn. Crim. A pp. 1994).       In ap pellate

review of post-conviction proceedings, the trial court’s findings of fact are

conclusive unless the evidence in the record preponderates against the findings.

Cooper v. State, 849 S.W .2d 744 , 746 (T enn. 19 93); Butler v. Sta te, 789 S.W.2d

898, 899 (T enn. 1990 ).



                           A. Comments by the Trial Judge



      The Petitioner first argues that appe llate counsel wa s inadequa te for failure

to brief an issue on appeal properly. In his direct appeal, the Petitioner asserted

that the trial court comm itted reversible error by instructing the jury in a manner

that sugges ted they would h ave to conclud e the case the next day:

           THE COURT: All right. The jury has all returned to the courtroom.
   Ladies and Gentlemen, it's 4 o'clock and I had hopes that we could finish
   all of the proof in this case today with the exception of one witness that
   was going to take about a few minutes acco rding to the law yers, b ut that's
   not going to be po ssible so I'm going to let you go on to the m otel a little
   early today. Remember what I said--but tomorrow--this is your last night
   at the m otel. No w, I'm just giving you fair warning tha t tomorrow w e're
   going to finish this case. And if we're sitting up here tomorrow night at
   midnig ht, then that's too bad. Okay? Rem embe r what I said, don't discuss

                                         -6-
   this case among yourselves. There's still some evidenc e to he ar. Do n't
   look in the newsp aper ab out it, and don't watch any television or listen to
   any radio acc ounts o f it. See you in the morning a t 9 o'clock. Have a good
   evening.

       Defense counsel moved for a mistrial which the trial judge overruled. The

trial judge made the following curative instruc tion the following day:

           THE COU RT: I go t to thinking a bout it last nig ht after I got home,
   and I told you all yesterday that we'd finish this case today, and I hope we
   do. But I don't want you to think that that just means that without a doubt
   you've got to rend er a verdic t today. I don 't think that you though t I meant
   that, but I didn't m ean th at, and , certain ly, if you w ant to d elibera te all night
   tonight, then that's certainly your privilege. So I hope yo u didn't think that.
   I didn't mean it that wa y.


       On direct appeal, the issue was waived because of couns el’s failure to c ite

authority or cite to the record. T he Petition er conte nds tha t this amo unts to

ineffective assistance and cites Garton v. State, 555 S.W.2d 117, 119 (Tenn.

Crim. App . 1976).     “Wh ile this Court strongly disap proves of failure to cite

authority in support of argument in a brief, as Rule 15 of the Tennessee Supreme

Court Rules makes clear, we are unwilling to say that such failure constitutes

ineffective assistance o f counsel per se . “ Id. In Garton, this Court noted that

counsel had vigorously argued other issues and that the evidence against Garton

was overwhelming. Id. We find the situation in the case sub judice akin to that

in the cited case.     Here, counsel argued several issues on appeal and the

evidence was clear that the Defendant committed the crime. Therefore, we

cannot conclude that co unse l’s perfor man ce wa s ineffe ctive. T his is pa rticularly

true in light of the c onteste d argum ent.         The trial court issued a curative

instruction making it clear tha t the jury did not have to reach a verdict as in a

“dynam ite charge.” Kersey v. State, 525 S.W.2d 139 (Tenn. 1975). Furthermore,

trial counsel testified that he felt no pressure from the trial court to conclude the

case prematurely. The post-conviction court held that the curative instruction

                                             -7-
rendered any error b y the trial cou rt harmle ss. W e cann ot conclu de that the

evidence preponderates against the trial court’s findings or that his conc lusion is

erroneo us. The refore, we find this issu e to be w ithout me rit.

                                         B.



      Next, the Petitioner con tends that trial couns el rendered ine ffective

assistance by failing to req uest a continuance to secure the testim ony of R onald

Rone, a defense witness. Counsel testified at the post-conviction hearing that he

interviewed Rone prior to trial and that his expected testimony was that he had

seen or knew that William Hill, the victim in this case, carried a pistol. T he victim

was found with eight .38 calibe r bullets in his pants pocket. When it was time for

Rone to testify, he arrived at the courthouse drunk. At that point, trial counsel

chose not to have Rone testify. Trial counsel was also aware of Rone’s criminal

record. Counsel did not request a continuance because it was well into the trial

and he did not believe that Rone co uld necess arily be presentab le the next day

even if he had preserved him as a witness.



      The Petitioner notes that, although bullets were found on the victim, no

pistol was recovered. He contends that his self-defense theory was ques tionab le

because of this and that witnesses who saw Hill with a gun would subs tantiate

his theory of defense. The defense did call another witness, Bobby Armstrong,

who testified that he had seen a .38 caliber pistol in Hill’s home a few days before

the murde r.



      The Petitioner correctly points out that trial counsel has a duty to use

witnesses who may be of assistan ce to the d efense . State v. Zimmerman, 823

                                         -8-
S.W.2d 220, 227 (Tenn. Crim. App. 1991). However, in Zimmerman, this Court

noted that trial counsel failed to pres ent a valid reason to change trial strategy

and not ca ll his defen se witnes ses. Id. Here , coun sel inve stigate d the vic tim’s

background and pro duced witnesse s to support the self-defense theory. When

one of those w itnesses appea red drun k, we believe this was sufficient justification

not to present the witness. With knowledge of the witness’ background, counsel

had reason to believe h e would not be re liable. Clearly, his p ositive value to the

defense was tenuous and his drunken state c onvinc ed trial c ouns el to fore go his

testimony. We cannot conclude that counsel’s decision amounts to an error

implicating his level of co mpete ncy. This issue is with out me rit.



                             C. Petitioner’s Statement



      The Petitioner next contends that counsel erred by failing to suppress an

incriminating statement he made. Counsel testified that when the Petitioner was

in custody, he made a statement to the police and that he told them he thre w his

gun into the Duck River. Counsel obtained copies of the Petitioner’s statements.

It was his understanding that the Petitioner was Mirandized and refused to make

a statement but talk ed with his attorney, Billy Jack. Subsequently, the Petitioner

was approa ched b y the police and ga ve a state ment a fter bein g Mirandized.

Counsel was not aware of the content of the conversation between the Petitioner

and Billy Jack. Counsel also testified that the Petitioner had turned himself in and

stated his name and that he was the one who shot William Hill. Counsel testified

that, in light of the Petitioner’s admission, the statement that he threw the gun into

the river was o nly a sm all factor in light o f the entire c ase. As such, counsel

stated that he con centrate d on state ments by the Petitioner an d others that we re

                                          -9-
far more incriminating. Counsel concluded that the statement was essentially de

minimus in the context of the entire case. Counsel did agree that he had a

hearing to redact some information about the Petitioner during the testimony of

a police officer. The officer testified that the Petitioner admitted that the shotgun

he used he ha d borro wed a nd retu rned to his rela tive, rath er than throwin g it

away.



        The Petitioner testified that he refused to make a statement until he called

his lawyer.     He stated that Mr. Jack told him to refrain from making any

statements. The Petitioner denied being Mirandized and stated that defense

counsel never discussed the prospect of a motion to suppress his statement

because his rights might have been viola ted. T he Pe titioner te stified th at his

credibility was at issue and that this statement, which was contradictory to the

actual disposition of the murder weap on, m ade h im appear to be a liar and that

this pre judice d the re sult of th e trial.



        Counsel testified that he assessed the nature of the statement in light of

the facts and circumstances of the case and determined that the incriminating

nature of the statement was of minor significance.         In most circumstances,

however, advocacy demands that an attorney attempt to suppress any

incriminating evidence if arguable grounds exist. Nevertheless, on the record

before us, we are hesitant to find counsel ineffective. Even if counsel’s action

was de ficient, no pre judice ha s been shown . This issu e is withou t merit.




                                               -10-
                     D. Failure to Request Expert Assistance



       The Petitioner argues that trial counsel was ineffective for failure to request

an investigato r and a p sycholo gical or ps ychiatric eva luation. The Petitioner

points out that counsel requested and received a contin uanc e, citing “difficulty in

the investigation and preparation for the trial.” Defense coun sel arg ued in their

brief that the victim was a well-known member of the black community and that

they had difficulty getting potential witnesses to coopera te because they were

white. Counse l also stated that they w ere gaining some trust and new leads and

needed more time to investigate them. Counsel testified that he did no t seek to

obtain an investigator, although it would have been helpful, because it was not

the practice at the time. Counsel stated that he interviewed family membe rs

regarding potential witnesses, located them, but had trouble finding witnesses

who had testimony that was favorable for the Petitioner.                  Counsel also

investigated the victim’s p ropens ity for violence. On cross-examination, counsel

stated that the bulk o f the witn esse s saw the victim attem pting to leave in his

truck when th e Petitioner shot him. The Petitioner testified that Joe Hill was a

potential witness who saw the crime who defense counsel did not contact. The

Petitioner denie d that a ll of the witnesses at trial testified that they did not see the

victim with a gun. The Petitioner could not say what Joe Hill’s tes timon y would

have been.



       In support of this contention, the Petitioner cites Tennessee Code

Annotated section 40-14-207(b), which was in effect when he was tried and

provides:




                                          -11-
   In capital cases where the defendant has been found to be indigent by the
   court of record having juris diction of the cas e, such c ourt in an e x parte
   hearing may in its discretion determine that investigative or expert services
   or other similar services are necessary to ensure that the constitutional
   rights of the defenda nt are properly protec ted. If su ch de termin ation is
   made, the court may grant prior authorization for these necessary services
   in a reaso nable amount to be determined by the court. The authorization
   shall be evidence d by a signed o rder of the court. The order shall provide
   for the reimbursement of reasonable and necessary expenses by the
   executive secretary of the Suprem e Court as authorized by this part, and
   rules pro mulga ted there under b y the Sup reme C ourt.



      The trial court found that getting an investigator was not the routine

practice when the Petitioner was tried. The Petitioner correctly points out that

statutory law provided for investigative services. However, the Petitioner has

presented no evidence of witnesses or exculpatory evidence that would suggest

that counsel’s performance in investiga ting the case was deficient. This issue

has no merit.



       In addition, the Petitioner a rgues that counsel failed to request an

independent psychological or psychiatric evaluation. Counsel did request a nd

receive an evaluation at a mental health center regarding the Petition er’s insanity

and competency to stand trial. Counsel admitted that the Petitioner’s state of

mind regardin g threats from the victim was at issue, but was for the jury to

determine. Coun sel did no t reques t an indep enden t psycho logical exp ert to

address how persons react to fear to validate that the Petitioner was acting

becau se of fear o f the victim.



       The Petitioner argues that counsel could have, but did not request the

services of an exp ert.     He relies upon Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct.

1087, 84 L.Ed .2d 53 (1 985).      In tha t case, the Supreme Court held that an

                                        -12-
indigent defendant's right to due process had been violated by a denial of funds

to emplo y a psych iatrist.   The C ourt held that when a defendant has made a

thresh old showing that his or her sanity at the time of the offense is likely to be

a significant factor at trial, the defend ant has a constitu tional right to a ccess to

psych iatric assistance. Ake, 470 U.S . at 83, 105 S.Ct. at 109 6. The holdin g in

Ake is grounded in the Fourteenth Amendment's due process guarantee of

fundamental fairness, assuring a criminal defend ant a fair op portunity to present

his defense.



       In the case at bar, it does not appear that the Petitioner made a showing

that his mental competency was implicated at the time he committed the crime.

He underwent an initial evaluation at a mental health center from which we can

only surmise that the Petitioner’s mental state was not a viable issue. Ther e is

no evidence in the re cord before us that reflects th at the Pe titioner und erwent a

more extensive inpatient evaluation, which would suggest that insanity or mental

competency to stand trial was at issue. The Petitioner has merely indicated that

his menta l state was at issue in regards to his theory of self-defense. Without

more, it is not evident that trial couns el erred in fa iling to request a psychological

or psych iatric exp ert dur ing the guilt phase of the trial. See Coop er v. State , 847

S.W.2d 521, 529 (Tenn. Crim. App. 1992). Therefore, we cannot conclude that

couns els’ perform ance w as deficie nt. This iss ue is witho ut merit.



                   E. Inadequate Investigation and Preparation



       The Petitioner argues that trial counsel failed to inve stigate and pre pare

prope rly for his capital trial. T he Pe titioner te stified th at cou nsel m et with h im

                                           -13-
abou t five time s befo re his trial for appro ximately th irty minutes each visit. The

Petitioner could not say what kind of investigation was conducted, how defense

counsel treated the victim’s propensity for violence and whether the victim carried

a pistol. The Petitioner testified that counsel never told him about c ontacting

witnesses concerning an incident prior to the shooting. The Petitioner stated that

the victim “made a play” for him with a gun when he was in his truck and that he

did not know if counse l investigate d witness es. The Petitioner a dmitted that

counsel discussed the victim’s prior criminal record and attempted to introduce

it at trial, albeit unsuccessfully.



         Counsel testified that th ey obtain ed the P etitioner’s sta tements and

reviewed them. Counsel also investigated witnesses and leads for potential

witnesses, and even re ceived a con tinuance to pu rsue their investigation m ore

fully. Counsel obtained witnesses who would testify that the victim had a pistol

in support of the theory of self-defense, but unfortunately, Ronald Rone was

drunk when he was supposed to testify. Counsel could not recall the exact

number of meetings with the Petitioner, but maintained that he was in close

contact with the Petitioner’s moth er and exchanged information through her at

times.      Couns el talked w ith family m embe rs and e nlisted the m to help find

witnesses. Counsel investigated the victim’s tendency for violence. They did not

go to the location of the prior altercation because the Petitioner stated the

incident h appen ed whe n no on e was p resent.



         On cross-examination, counsel indicated he had been in private practice

for eleven years at the time of trial and that he had tried one p rior death penalty




                                         -14-
case. Counsel testified that the majority of the witnesses to the crime had

testimony un favorable to the P etitioner.



       From the record before us, we cannot conclude that the evidence

preponderates again st the tria l court’s finding that co unse l com prehe nsively

prepared and thoroug hly investiga ted the P etitioner’s ca se. In fact, the trial judge

noted that the proof in the case was so me of th e strong est that he had se en to

support a first-degree murder conviction. Therefore, we find this issue to be

without m erit.



       According ly, we affirm the judgment of the trial court dismissing the petition

for post-co nviction relief.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                          -15-
