# FILED
March 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

JERRY DALE DUFFEY, ) ) APPELLANT, )

) No. 01-C-01-9701-CC-0 0016 ) ) Marshall County v. ) ) W. Charle s Lee, Judge ) ) (Post-Convic tion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Curtis H. Gann John Knox Walkup Assistant Public Defender Attorney General & Repor ter P.O. Box 1119 425 Fifth Avenue, North Fayetteville, TN 37334 Nashville, TN 37243-0493 (Appeal Only) Ellen H. Pollack Michael D. Randles Assistant Attorney Gener al Assistant Public Defender 450 James Robertson Parkwa y P.O. Box 1119 Nashville, TN 37243-0493 Fayetteville, TN 37334 (Trial On ly) W. Mic hael McCo wn District Attorney General OF COUNSEL: P.O. Box 904 Fayetteville, TN 37334 John H. Dickey District Public Defender Weakley E. Barnard P.O. Box 1119 Assistant District A ttorney General Fayetteville, TN 37334 Marshall County Courthouse Lewisburg, TN 37091

OPINION FILED:___________________________
AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Jerry Dal e Duffey (petitioner), appeal s as of right from a j udgment of the trial court dismis

sing his post-convi ction action following an ev identiary hearing. The petitioner

contends (a) the trial j udge committed error of prejudicial dimensions by refusing to recuse himself and (b) the evidence contained in the record estab lishesthe petitioner
was denied his constitutional r ightto the effective assistance of couns el. After a thorough review of the record, the briefs submitted by the parties, and

the law governing

the issues presented for review, it is the opinion of

this court that the

judgment of the trial court should be affirmed.

I. 

### PROCEDURAL HISTORY

The Marshall County Gr and Jury returned a thir ty-one count indictment against the petitioner. Each count of the indictment charged the offense of theft by fraud and deceit. The petitioner was conv icted of twenty-seven count s of felony and misdemeanor offenses. The trial court imposed an effective sentence of

confinement for fourteen (14) years in the Department of Correction. The p etitioner appealed as of rig ht to this court. The only issue raised was the sufficiency of the convicting evidence. This court affirmed the judgment of the trial cour t. State v. Jerry Dale D uffey , Marshall County No. 01-C-01-9501-CC- 00017 , 1 99 5 WL 441611 (Tenn. Crim. App., Nashv ille, July 26 , 1995). The supreme court denied the petitioner’s application for permission to appeal on Febr uary 5, 1996. The petitioner instituted thi s post-conviction action on March 1, 1996. The trial court appointed counsel to represent the petitioner. An evide ntiary hearing w as held on July 24, 1996. The trial court entered it s judgment denying

the relief sought on September 6,1996.3 II. 

### RECUSAL OF THE TRIAL COURT

The petitioner contends the trial judge abused his discretion by denying the motion forrecusal. The record reflect s the peti tioner sued a multitude of people in Marshall County. It appears the petitioner alleged the trial judge, clerk , court reporter, attorney general, assistant attorney general, and a multitude of other people conspired to have him convicted of what he c ontinues to describe as civ il matters. The petitioner s ought $62,000,000.00 in damages. The record is sketchy regarding the law suit. A c opy of the complaint was not introduced as evidence during the hearing on the motion for recusal. It appears the lawsuit
was dismissed by

another judge, and, according t o the petitioner, he planned to appeal the dismissal. On the other hand, the petitioner stated he had never issued the summons he
was required to serve the parties. The trial judge stated h e had not been served with a summons, but he had read the complaint bef ore the hearing. An extensive hearing was held on th e motion for recusal. When the petitioner was questioned, he admit ted he di d not have any e vidence that the trial court conspi red with any other person to deny

him his rights. He tes tified the tria l judge knew or sho uld have known the thirty-one counts c ontained in the indictment failed t o state a cr ime, yet the judge permitted the Marshall County grand jury to in dict him for “civil” v iolations. The petitioner

also stated the trial judge knew the indictments w ere facially defective an d void, but permitted the jury to convict him of the offenses. He opined the tria l judge “went out of his subject matter jurisdiction . . . when you hear a civil case in criminal court.” When the petitioner was asked if he had any evidence the tri al judge knew when the assistant district attorney general was going to present the ind ictment to thegrand jury, the pet itioner

answ ered: “Absolutely none, s ir” and “I have no proof.” On several occasions the petitio ne r stated the proof was “i n the [trial] transcri pts.” He also contended the tr ial judge told the parties how to trytheir respective la wsuits. However, the referenc e was to
a disc ussion over a point of law which occurred outsi de the presence of the jury. The petitioner

also said his proof of

the trial judge’s co nspiracy was that the judge sentenced4

him aft er he was co nvicted by t he jury. In summary, the petitioner predicated hi s entire cause of action on the contention he was tried for civil infractions in a criminal proceeding, and he was c onvicted of these offenses. The hearing does not contain a scintill a of evidence the trial judge violated any right of the petitioner. The trial judge revi ewed the complaint filed by the petitioner. He described t he pleadings as “frivol ous.” He noted there had been no s ervice of process and

he had not been served with a summons and copy of the lawsuit. The trial j udge recognized judges and other public officials are sued by citizens c onvicted of criminal offenses from ti me to time. Th e jud ge went through a litany of factors he considered relevant to the inquiry before denying the motion. The tri al judge stated on the recor d he could be fair and impartial. The record reflects the judge was in fact fair and impartial during the c ourse of the evidentia ry hearing. The trial court con cluded th e petitio ner wa s at tempting to disqualify him so he coul d “forum shop.” Amotion for recusal addresses itself to thesound discretion of the trial court. State
ex rel. Phillips

v. Henderson , 220 Tenn. 701, 707, 423 S.W.2d 489, 491 (1968); In re Cameron , 126 Tenn. 614, 649-50, 151 S.W. 64, 74 (1912); Caruthers v. State , 814 S.W.2d 6 4, 67 (Tenn. Crim. App.), per . app . denied (Tenn. 1991). An appellate cour t will not interfere with the exercis e of this discretion unless clear abuse appears on the face of the record. Phillips , 220 Tenn. at 707, 423 S.W.2d at491; State v. Boggs , 932 S.W.2d 467, 472 (Tenn. Crim. App.), per . app . denied (Tenn. 199 6); Caruther s , 814 S.W.2d at 67. Thus, the standard of review in these matters is abuse of discretion. State v. Cash , 867 S.W.2d 741, 749 (Tenn. Crim. 1993). As the supreme court said in State v. Hurley , 876 S.W.2d 57, 64 (Tenn. 1993), cert
. denied , 513 U.S. 933, 115 S.Ct. 328, 130 L.Ed.2d 287 (1994): “The issue to be determined is not the propriety of the judi cial conduct of the trial judge, but whether he committed an e rror which resulted in an unjust disposition of the case.” In this jurisdiction, “a trial judge should recuse himself whenever he h as any doubt
as to his ability to pr

eside impartially in a criminal case or whenever he believes his impartiality

can reasonably be questioned.” Lackey v. State , 578 S.W.2d 101, 104 (Tenn.5

Crim. App. 1978), per . app . denied (Tenn. 1979). The relevant inquiry is whether “a person of ordinary prudence in the judge’s position, know ing all of the facts known to the judge, wo uld find a reasonable basis for questioning the judge’s impartiality.” Alley v. State , 882 S.W.2d 810, 82 0 (Tenn. Crim. App. 1994). In the context of this case, the trial judge did not abuse his discretion by deny ing the petitioner’s motion for recusal, given the testimony and statements in the re cor d, the frivolousnature of the complaint filed by the petitioner, and the fact the peti tioner could not muster a scintilla of

evidence to

support his allegations and contentions. Apparently, the petitioner

does not realize a pers on can be sued civilly

and be convicted of a criminal offense based upon the same transaction and identic al fa cts. Moreover, a peti tioner should not be permitted to file a lawsuit or make frivolous and scurr ilous allegations for the purpose of disqualifying a trial judge or to “

forum shop.” This issue is without merit.

III.



### EFFECTIVE ASSIST

ANCE OF COUN SEL

The petitioner contends h e was denied his const itutiona l right to th e effec tive assistance of counsel. He argues his attorney failed to (1) challenge the sufficiency of the indictment

returned by the

grand jury, (2) file a motion for severance of offenses, (3) call
a sufficient number

of defense witnesses, and (4) move for a change of v enue. The trial court accredited the testimony given by t he state’s witnesses, defense counsel, and the deputy sheriff who handled the inve stigation into the transa ction s which led to the indictment, and rejected the testimony of the pe titioner. The record supports the findings of fact made by the tr ial cou rt. The evidence presented by the petitioner and the ev idence presented by the State of Tennessee conflicts, and these conflicts cannot be res olved. The trial court accredited the testimony of the state’s witnesses and rejected the testimony of the petitioner. It is understan dable why the court accredited the st ate ’s tes timony given the nature of the petitioner’s testimo ny. For instance, the petiti on er testified he had spoken to agents of the Federal6

Bureau of Investigation about what had occurred in Marshall County and the file containing his complaints was sitti ng on the deskof Attorney General Janet Reno in W ashington, D.C. In short, the petitioner fai led to esta blish the allegations of hi s complaint by “clear and convincing evidence.” Tenn. Code Ann. § 40-30-210(f). Either the defense attorney’s conduct did not constit ute ineffect ive assistance of counsel or, in thealternative, the petitioner was not prejudiced due to defense coun sel’s representation. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975). Therefore, the trial court properly dismi ssed the petitioner’s post-conviction action.

________________

____________

________________

_ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ PAUL G. SUMM ERS, JUDGE

______________________________________ WILLIAM M. BARKER, JUDGE