Tyrone v. Turner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 14, 2001

TYRONE V. TURNER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Rutherford County

No. F-48470 J. S. Daniel, Judge

No. M2000-01949-CCA-R3-PC - Filed March 29, 2001

The petitioner, Tyrone V. Turner, appeals the trial court's denial of post-conviction relief. The issue

presented for review is whether the petitioner was denied the effective assistance of counsel on direct

appeal. The judgment is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.

GLENN, JJ., joined.

Lance H. Selva, Murfreesboro, Tennessee, for the appellant, Tyrone V. Turner.

Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; and Paul A.

Holcombe III, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On July 26, 1996, the petitioner was convicted of second degree murder. The trial court

imposed a 22-year sentence. This court affirmed on direct appeal. State v. Tyrone V. Turner, No.

01C01-9707-CC-00249 (Tenn. Crim. App., at Nashville, Sept. 3, 1998). Permission to appeal to our

supreme court was denied on March 15, 1999.

On December 9, 1995, the petitioner drove his car to a fast food restaurant where the victim,

Cory Ward, was employed. After picking up the victim, the petitioner drove to Murfreesboro and

stopped at a convenience market to use a pay telephone. After he had completed his call, the

petitioner saw the victim, who had gone inside the market, arguing with a customer. At that point,

the petitioner, who was a frequent customer at the market, disengaged the safety on a handgun he

had in his possession, placed it in his pocket, and walked inside the market. When he determined

that the victim was causing a scene with the manager and another regular customer at the market,

the petitioner grabbed the victim, pulled him outside the store in order to prevent a fight, and

apologized to the manager. The petitioner then drove to a parking lot and engaged in a heated

argument with the victim. The two men began to fight. When the victim ran to the rear of the

vehicle, the petitioner went around the front of the vehicle, took the handgun from his pocket, and

shot three times. The petitioner left the scene, threw his gun out the window, and drove to his

girlfriend's house. When questioned later by police, the petitioner first claimed that the victim had

been shot in a drive-by shooting, but later admitted his involvement. An autopsy revealed that the

victim had a blood alcohol content of .26 and had been shot once in the neck and twice in the back

from a distance of over two feet.

In his petition for post-conviction relief, filed March 15, 2000, the petitioner alleged, among

other things, that his counsel on direct appeal was ineffective for having "waived several issues."

In this appeal, he contends that the failure of his counsel to ensure inclusion of the jury instructions

in the appellate record resulted in a waiver of his claim on direct appeal that the trial court erred by

refusing to charge certain specially requested instructions. The petitioner contends that such a

glaring deficiency on the part of his appellate counsel should result in the grant of a new trial,

regardless of any showing of prejudice. In the alternative, the petitioner asserts that the inclusion

of the instructions "would likely have affected the result of his appeal."

During the evidentiary hearing on the petition for post-conviction relief, the petitioner's trial

counsel testified that he had requested special additional instructions on second degree murder and

voluntary manslaughter:

(1) requested supplement to Tennessee Pattern Instruction–Crim. 7.05:

Included in the defendant's plea of not guilty is his plea that his acts constituting the

offense charged were the results of being in a state of passion produced by adequate

provocation sufficient to lead a reasonable person to act in an irrational manner. The

issue [is] properly before you based upon the evidence presented.

In this case, the state has the burden of proof beyond a reasonable doubt to establish

the absence of the state of passion produced by adequate provocation sufficient to

lead a reasonable person to act in an irrational manner.

If the state fails to establish the absence of this fact beyond a reasonable doubt, or if

you have a reasonable doubt on this issue, the defendant may be convicted of no

more than voluntary manslaughter.

(2) requested supplement to Tennessee Pattern Instruction–Crim. 7.06 (to be

inserted immediately after the definition of passion):

Included in the defendant's plea of not guilty is his plea that his acts constituting the

offense charged were the results of being in a state of passion produced by adequate

provocation sufficient to lead a reasonable person to act in an irrational manner. This

issue [is] properly before you based upon the evidence presented.

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In this case the state has the burden of proof beyond a reasonable doubt to establish

the absence of the state of passion produced by adequate provocation sufficient to

lead a reasonable person to act in an irrational manner.

If the state fails to establish the absence of this fact beyond a reasonable doubt or if

you have a reasonable doubt on this issue, the defendant may be convicted of no

more than voluntary manslaughter.

Trial counsel also testified that he had no case law to support his special requests. On direct appeal,

counsel argued that the requested instructions would have properly placed the burden on the state

to establish the absence of a state of passion. That is, the requested instructions would have limited

the verdict to manslaughter unless the state negated the defense claim of passion due to adequate

provocation.

Of course, Rule 24 of the Tennessee Rules of Appellate Procedure requires an appellant to

prepare a record that presents a complete account of what occurred in the trial court in regard to any

issue presented for review. Absent that, this court may not address the merits of the claim. State v.

Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987); State v. Hopper, 695 S.W.2d 530, 537 (Tenn.

Crim. App. 1985). Because the jury instructions were not included in the record, this court did, in

fact, rule that the issues relating to the specially requested instructions had been waived. The merits

of the claim were not addressed even though the trial court had signed an order some six months

prior to the release of our opinion, requiring that the record be supplemented, not only by the special

requests for instructions but by the general charge to the jury. While the special requests were added

to the appellate record, the general charge was not. In consequence, the panel could not compare the

nature of the special requests with the substance of the instructions actually provided to the jury. For

example, in Broestler v. State, 186 Tenn. 523, 212 S.W.2d 366, 367 (1948), our supreme court

refused to consider a jury instruction challenge because the entire charge was not included in the

record.

At the conclusion of the evidentiary hearing, during which trial counsel for the petitioner

appeared as the only witness, the trial court observed as follows:

I did charge voluntaryon the second degree murder provision as well as the voluntary

followed the pattern manslaughter. . . .

manslaughter provision.

It looks like that I even used the suggested definition of passion that [trial

counsel] asked for, if not the entirety of it, because I see [the special request] in the

original record being struck, part of it.

I did not grant, though, this novel theory instruction that once passion had

been raised, then the burden shifts to the State to disprove that state of mind, and that

particular special request was not granted.

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Ultimately, the trial court determined that appellate counsel was not deficient because the

omission of the instructions was the fault of the court clerk's office. The trial court ruled that it was

"too high an obligation" to impose upon counsel to assure that the clerk's office had performed its

administrative duty. The trial court also found, however, that there was no resulting prejudice even

if appellate counsel had been deficient in his efforts to develop a complete record. It concluded that

the petitioner had failed to present any legal authority establishing that the special requests were

supported by law.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, he must first establish that the services rendered or the advice given were below "the range

of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the

defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Our supreme court described the standard of

review as follows:

Because a petitioner must establish both prongs of the test, a failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim. Indeed, a court need not address the components in any particular

order or even address both if the defendant makes an insufficient showing of one

component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective assistance of counsel,

the petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial

strategy, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of

the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference

to the tactical decisions of counsel, however, applies only if the choices are made after adequate

preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Under our statutory law, the petitioner bears the burden of proving his allegations by clear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the findings of fact made

by the trial court are conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The

burden is on the petitioner to show that the evidence preponderated against those findings. Clenny

v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

In the opinion of this court on direct appeal, the panel made the following observation:

With respect to the appellant's two issues regarding jury instructions, we find it

difficult to address these issues without a complete record. Although the appellant

supplemented the record on appeal with a copy of his requested jury instructions, we

do not have the jury instructions actually given to the jury by the trial court. Rule

24(b) of the Tennessee Rules of Appellate Procedure requires the appellant to prepare

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a record on appeal that presents a complete account of what occurred in the trial court

regarding any issue presented for our review. Because we do not have the

instructions actually given by the trial court to the jury, this issue is waived.

Tyrone V. Turner, No. 01C01-9707-CC-00249, slip op. at 5.

The general instructions provided by the trial court are now in the record. The only argument

made by the petitioner is that appellate counsel's failure to include the instructions qualified as a

deficient performance of his professional duty and that the omission affected the results of the trial.

To prevail, however, the petitioner must establish that the special instructions reflected the state of

the law and should have been given. Absent that, the petitioner suffered no prejudice from any

deficiency in performance. The only real concern raised by the special requests is whether the state

had the burden to "negate" the claim of passion, which, if accepted by the jury, would have

warranted a verdict of voluntary manslaughter. The trial court was not persuaded by the petitioner's

arguments. The only supportive argument made in this appeal is that the special requests were

"largely in line with the type of instructions given in defenses involving insanity and self-defense."

The petitioner contends that "in order to convict a defendant for second degree murder the [s]tate

must negate beyond a reasonable doubt all of the elements of voluntary manslaughter." For that

proposition, he cites as authority Armes v. State, 540 S.W.2d 279 (Tenn. Crim. App. 1976).

The holding in Armes, however, is not as the petitioner suggests. In fact, in that 1976 case,

a panel of this court approved an instruction that use of a deadly weapon during a killing raised a

presumption of malice "sufficient to sustain a charge of second degree murder unless it is rebutted

by other facts and circumstances." Id. at 281. Later, of course, in Sandstrom v. Montana, 442 U.S.

510 (1979), the United States Supreme Court ruled that the "presumption of malice" instruction

violated constitutional due process. See State v. Martin, 702 S.W.2d 560, 564-5 (Tenn. 1985),

overruled on other grounds by State v. Brown, 836 S.W.2d 530 (Tenn. 1992). In essence, the

petitioner's argument, both on direct appeal and now, is that the law requires the state to establish

the absence of passion, thereby negating any defense proof thereof. The holding in Armes contains

no such implication.

In this instance, the general charge directed the jury that there could be no conviction unless

the state had met its burden of proving each of the elements beyond a reasonable doubt. The trial

court followed the applicable provisions in the Tennessee Pattern Jury Instructions. Second degree

murder was properly defined as an "unlawful" and "knowing" killing of another. See Tenn. Code

Ann. § 39-13-210(a)(1); State v. Meade, 942 S.W.2d 561, 564 (Tenn. Crim. App. 1996). Voluntary

manslaughter was properly defined as the "intentional" or "knowing" killing of another resulting

from "a state of passion produced by adequate provocation sufficient to lead a reasonable person to

act in an irrational manner." See Tenn. Code Ann. § 39-13-211(a); see also State v. Brown, 836

S.W.2d 530, 543 (Tenn. 1992). It is the duty of the jury to weigh and consider the value of the

testimony and the credibility of the witnesses. The trial court has the duty to define provocation, but

whether the facts in evidence constitute provocation is a jury question. Freddo v. State, 127 Tenn.

376, 155 S.W. 170 (1913); Seals v. State, 62 Tenn. 459 (1874). Here, the jury determined beyond

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a reasonable doubt that the petitioner had committed second degree murder and rejected the claim

by the petitioner that there was adequate provocation. That was the jury's prerogative.

In our view, the instructions were in compliance with the applicable law. Thus, the petitioner

cannot prevail on a claim of ineffective assistance of counsel. The judgment is, therefore, affirmed.

_________________________________________

GARY R. WADE, PRESIDING JUDGE

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