The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
September 30, 1999
JANUARY 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
CHARLES GAYLOR, * No. 03C01-9702-CR-00066
Appellant, * CAMPBELL COUNTY
VS. * Hon. James W itt, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Kenneth F. Irvine, Jr. John Knox Walkup
Eldridge, Irvine & Hendricks, PLLC Attorney General and Reporter
606 W. Main Street, Suite 350
Post Office Box 84 Marvin E. Clements
Knoxville, TN 37901-0084 Assistant Attorney General
(on appeal) Criminal Justice Division
425 Fifth Avenue North
Don Elledge, Attorney Nashville, TN 37243
Shattuck & Elledge
101 S. Main Street, Suite 300 William Paul Phillips
Clinton, TN 37716 District Attorney General
(at trial) P.O. Box 323
Jacksboro, TN 37757
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Charles Gaylor, appeals the trial court's denial of post-
conviction relief. The following issues have been presented for review:
(I) whether the trial court erred in finding that the petitioner received
the effective assistance of counsel at trial and on appeal; and
(II) whether the jury instructions at trial on reasonable doubt violated
the petitioner's right to due process by the use of the phrases "moral certainty" and
"let the mind rest easily."
We find no error and affirm the judgment of the trial court.
In 1991, the petitioner was convicted of first degree murder and
conspiracy. The petitioner and several others, including Olen Edward Hutchison,
were implicated in the killing of Hugh Huddleston in an effort to collect some
$500,000 in insurance death benefits. Hutchison and the petitioner were tried
jointly. At trial, Hutchison received the death penalty and the conviction and
sentence were subsequently affirmed. State v. Hutchison, 898 S.W.2d 161 (Tenn.
1994). The petitioner received a life sentence for first degree murder and a
consecutive ten-year sentence for conspiracy. This court affirmed. State v. Gaylor,
862 S.W.2d 546 (Tenn. Crim. App. 1992). Later, our supreme court denied an
application for permission to appeal. On April 22, 1996, the petitioner filed this
petition for post-conviction relief alleging, among other things, ineffective assistance
of counsel and a violation of due process by the "moral certainty" instruction to the
jury. The petitioner was appointed counsel and the petition was amended twice.
The trial court conducted an evidentiary hearing and at the conclusion
of the proof ruled, in pertinent part, as follows:
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Counsel cannot be ineffective for failing to object to
proper jury instructions . . . . Trial counsel filed for and
sought a bill of particulars, and such a bill of particulars
was provided. . . . Closing arguments of the State were
proper, supported by the evidence of the trial, or
reasonable inferences drawn thereon . . . . Trial counsel
made numerous objections to various portions of the
arguments and said counsel was not ineffective for failing
to preserve, or appeal, issues concerning the State's
closing argument . . . . Even if portions of the State's
argument were improper, such error would be harmless
in view of the overwhelming evidence of the petitioner's
guilt.
....
The validity of the jury instruction concerning "reasonable
doubt" has been repeatedly upheld by the appellate
courts of Tennessee.
I
The petitioner bases his claim of ineffective assistance of counsel on
the following:
(1) counsel's failure to challenge the jury instructions relating to
premeditation and deliberation at trial and on appeal; and
(2) counsel's failure to raise the issue of improper jury argument by
the state in the motion for new trial and on appeal.
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:
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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 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).
The petitioner's first argument is that his trial counsel should have
objected to the definitions the trial court provided the jury on premeditation and
deliberation. This trial, however, took place prior to the ruling in State v. Brown, 836
S.W.2d 530 (Tenn. 1992), the case upon which the petitioner bases his claim for
relief. See also State v. West, 844 S.W.2d 530 (Tenn. 1992). Brown has not been
given retroactive application and has not been a basis for post-conviction relief in
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the context of ineffective assistance of counsel. See, e.g., State v. Willie Bacon, Jr.,
No. 1164 (Tenn. Crim. App., at Knoxville, Aug. 4, 1992); State v. Edwin E.
Jesperson, No. 03C01-9602-CC-00058 (Tenn. Crim. App., at Knoxville, Jan. 28,
1997). Thus, the failure of trial counsel to challenge the instruction cannot be a
basis for relief.
The petitioner also insists that trial counsel was ineffective for failing to
adequately argue the issue of improper closing argument by the state. The
petitioner particularly objects to the use of such terms as "hit man," "drug lord,"
"assassins," "godfather," "ringleader," and "ring of thugs." The prosecutor also
referred to the petitioner specifically by using the terms "vulture" and "Judas Goat,"
and, at one time, compared the petitioner to "a serpent who might beguile and
mislead you in a garden . . . ."
Clearly, portions of the argument were intemperate. In context,
however, any error in the failure to exclude those parts of summation would not
have resulted in the reversal of the conviction or the grant of a new trial. Harrington
v. State, 385 S.W.2d 758 (Tenn. 1965). The factors utilized for determining the
presence of prosecutorial misconduct are set out in Judge v. State, 539 S.W.2d 340
(Tenn. Crim. App. 1965), as adopted by our supreme court in State v. Buck, 670
S.W.2d 600 (Tenn. 1984):
(1) the conduct complained of, viewed in light of the
facts and circumstances of the case;
(2) the curative measures undertaken by the court and
the prosecutor;
(3) the intent of the prosecutor in making the improper
statement;
(4) the cumulative effect of the improper conduct and
any other errors in the record; and
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(5) the relative strength or weakness of the case.
This was a particularly egregious case and the state's evidence
against the petitioner was strong. While the argument was overly metaphorical in
many respects, the state proved facts warranting the unfavorable references.
Because any deficiency in performance did not affect the results of the trial, the
petitioner is not entitled to relief on this ground. In summary, the evidence does not
preponderate against the trial court's finding that the petitioner received the effective
assistance of counsel.
II
Petitioner next contends that the jury instructions regarding reasonable
doubt entitle him to post-conviction relief. The instruction given was as follows:
Reasonable 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 easily as to
the certainty of guilt. Reasonable doubt does not mean a
captious, possible or imaginary doubt. Absolute certainty
of guilt is not demanded by the law to convict of any
criminal charge, but moral certainty is required and this
certainty is required as to every proposition of proof
requisite to constitute the offense.
It is the inclusion of the phrases "moral certainty" and "let the mind rest
easily" that the petitioner claims is error. Specifically, he contends that the phrases
unconstitutionally lower the standard of proof required to sustain a criminal
conviction. Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990). He argues that
when a deficient reasonable doubt instruction is given, it is never harmless error.
Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078 (1993).
In Cage, the United States Supreme Court held unconstitutional an
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instruction equating reasonable doubt with "actual substantial doubt" and "grave
uncertainty." The Court held that "[w]hen those statements are then considered with
the reference to 'moral certainty,' rather than evidentiary certainty, it becomes clear
that a reasonable juror could have interpreted the instruction to allow a finding of
guilt based on a degree of proof below that required by the Due Process Clause."
Id. at 41, 111 S. Ct. at 329.
In Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239 (1994), the
Supreme Court considered the definition of reasonable doubt given in the trial of two
criminal defendants from two state courts. Jurors in the first case were told that they
must have "an abiding conviction, to a moral certainty, of the truth of the charge" in
order to meet the reasonable doubt standard. In the second case, the instruction
provided that a reasonable doubt is "an actual and substantial doubt" and that the
jury must have "an abiding conviction, to a moral certainty, of the guilt of the
accused." The Supreme Court concluded that while they would not "condone" the
use of the term "moral certainty," the instructions were distinguishable from those
given in Cage because the jurors would understand from the instructions that they
were to base their verdict on the evidence rather than other factors which could
allow conviction on a standard lower than reasonable doubt. Further, the Court
stated that "[i]nstructing the jurors that they must have an abiding conviction of the
defendant's guilt does much to alleviate any concerns that the phrase 'moral
certainty' might be misunderstood in the abstract." Id. at 19, 114 S. Ct. at 1250.
Here, the petitioner relies upon these Supreme Court decisions in his
attack upon the use of the terms "moral certainty" and "let the mind rest easily" in
conjunction with the reasonable doubt standard. We are, however, not persuaded
that the instructions given in his trial suffered from the same infirmities as the
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instruction given in Cage. Moreover, the terminology to which the petitioner objects
has been specifically approved by this court and by the Tennessee Supreme Court.
State v. Nichols, 877 S.W.2d 722 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263
(Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364 (Tenn. Crim. App.
1994); State v. Hallock, 875 S.W.2d 285 Tenn. Crim App. 1993); State v. Blank, No.
01C01-9105-CC-0139, (Tenn. Crim. App., at Nashville, February 26, 1992). In fact,
no Tennessee court has interpreted Cage to require the absolute abandonment of
the use of the phrase "moral certainty" in jury instructions used to define reasonable
doubt.
The trial court's use of the words "moral certainty," unconnected with
any other limiting or expanding adjectives, did not lessen the burden of the state to
show guilt beyond a reasonable doubt. Our supreme court has stated as follows:
When considered in conjunction with an instruction that
"[r]easonable 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 easily upon
the certainty of your verdict," we find that the instruction
properly reflects the evidentiary certainty required by the
"due process" clause of the federal constitution and the
"law of the land" provision in our state constitution.
Nichols, 877 S.W.2d at 734. W e conclude that the instructions in the instant case
sufficiently described the standard for the degree of proof required to convict.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_______________________________
James Curwood W itt, Jr., Judge
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________________________________
John K. Byers, Senior Judge
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