# FILED
October 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1995 SESSION

LEN MARTUCCI, ) ) Appellant, ) No. 03C01-9412-CR-00438 ) ) Anderson County v. ) ) Honorable James B. Scott, Jr., Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : J. Michael Clement Charles W. Burson 210 Charles Seivers Bl vd. Attorney General of Tennessee Clinton, TN 37716 and John Patrick Cauley Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 James N. Ramsey District Attorney General and Jan Hicks Assistant District A

ttorney General Anderson County Courthouse Clinton, TN 37716

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge1 Although t he trial court fai led to set

forth specific fact ual fi ndings wit h respect to e ach of the petitioner’s claimed grounds for relief as required under T.C.A. § 40-30-1 18, a remand is unn ecessary given the s tate of the p resent re cord. See State v. Swanson , 680 S.W.2d 487,489 (Tenn. Cri m. App. 1984). 2 O P I N I O N The petitioner, Len Martucci , appeals as of right from the Ander son County Criminal Cour

t’s denial of his petition for post-conviction reli ef after an evidentiary hearin g. The petition er has filed a so mewhat rambling, ninety-five-page brief in this court rais ing a panoply of issues. Essentially, the petiti oner argues that he is entitled to post-conviction relief for the following reasons:

(1) the trial court failed to hold a sentencing hea ring; (2) the first degree murder jury i nstruction that was g iven at his trial is constitutionally deficient under State v. B rown , 836 S.W.2d 530 (Tenn . 1992); (3) the court inade qu at ely charged the jury on the state’s burden o f proof; (4) judicial and p ros ecutorial misconduct vi olated his due process rights; (5) he received the ineffective assistance of counsel; (6) the petitioner was denied his choice of counsel; Having found no revers ible error, we affirm the j udgment of the trial court. 1

The petitioner was conv icted of first degree murder i n December 1988, and sentenced to life imprisonment. This court affirmed his convic tion. State v. Len Martucci , No. 213, Anderson County ( Tenn. Crim. App. Apr. 3, 1990), app
. denied (Tenn. July 2, 1990). In Sept ember 1991, the petitioner filed a pro se petition for postconviction relief. The tr ial court dismissed the petition after appointed counsel faile d to amend it. This court rever sed the dismissal and remanded the case in order for the petitioner’s counsel to amend the petition. Martucci v. State , 872 S.W.2d 947 (Tenn. Crim. App. 1993). The petitioner now appeals the trial c ourt’s denial of his amended petitio n for pos

t-conv iction relief.3 At the post-conviction e videntiary hearing , the attorney initiall y retained by the petitioner to represent h im testified that he felt compelled to withdraw from representing the petitione r because the attorney beli eved he could be a witnes s in the petitioner’s trial. H e recalled that the trial court held a hearing to dete rmine whether he had material evidence to offer as a witness. Although he originally beli eved that he would have nothing to offer as a witness at the petitioner’s trial, he explained that it became apparent to him as the hearing progressed that he could no t continue to represent the petitioner.

The attorney who represented the petitioner at trial and prepared his appellate brief also testified at the post-conviction hear ing. She said that the petitioner was unhappy with her

while she was re presenting him because she us ed her professional judgment instead of doi ng everything ex actly the way he w

anted it done. She said that she told the court about the petitioner’s concer ns and requested that the petitioner be appointed an additi onal attorney, but the court refused.
With respect to her investigation of the pe titioner’s case, the petitioner’s trial attorney testified that she traveled to Ty ler, Texas, and spoke to a number of potential witnesses that she learned about from the petitioner or through discover

y. She said that she also vi sited the crime scene but that she did not take pictures or measurements of the crime scene. She s aid that she did not measure the crime scene because she thought the measurements may have worked ag ainst the defense. She recalled that she had asked one o f the investigating pol ice officers to accompany her t o the crime scene but that he had r efused to do so without the pros ecutor’s permission. Although she review

ed all the physical ev

idence that she gained throug h discovery, she admitted that she did not provide the defenda nt with a copy or photograph of each piece of evidence. She said that she met with the petitioner num erous times before his4

trial and estimated that she s pent no less than twenty -five or thirty hour

s talking to the petitioner in preparation for the trial.
The attorney remembered that duri ng the petitioner’s tri al, the state had a box and at least one bag of ev idence that was visi ble to the jury before it w as introduced into evidence. She explained that she and the petitioner knew that the containers held items that had been seized from the petitioner’ s car. She said that she thought the display of the containers of evidence that had not yet been admitted was prejudicial and that she br ought her concerns to the tr ial court’s attention.
The petitioner’s trial attorney also testified that she objected to the state’s use of mug shots of the petitioner tha t were attached to a polic e report. She recalled that the trial court susta ined her objection and that the pr osecuting attorney dis

obeyed the trial court’s instruction by failing to remove the photographs from the report bef ore using it to impeach the petit ioner. Sh e said tha t she did n ot reques t a curati ve instruction or that the jury be polled when the prosecutor disobeyed the court’s instruction because she did not want to draw attention to the photographs. She also stated that she had no reason at that time to think that any jur or had seen the photographs.

The attorney testified that she met with the petitioner tw

o or three times while she was prepa ring his direct appeal and that she also had quite a b it of correspondence with the pe titioner. She said that she reviewed each of the lett ers that the petitione r sent her to dete rmine whether the y contained anyth ing that needed to go in his appellate brief. She ex plained that she did not inclu de every issue the peti tioner wanted to raise in the brief because some of the issues he wanted her to raise were unsupported by the facts or la w.2 The letters are n ot pa rt of th e rec ord o n app eal. 5 The attorney who orally argued the petitioner’s case testified that he was assigned to the petitioner’ s case after the appellate brief had been filed. He said that he familiarized himself w ith the record and argued the issues that were rai sed in the brief. In his review

of the record, he did not find any issues that had not been raise d that would have changed the outcome of the appeal. Although he s aid that he read correspondence that contained the petitioner’s concerns, he could not recall whether he factored the petitioner’s conc erns into his argument.
The petitioner also testified at the post-conviction hear ing. He said that he was dissatisfied wi

th his trial attorney

’s representation of him. He s aid that he never requested appointed counsel and denied that he was indigent at the time of trial. He said that his trial couns el did not provide him w ith copies of the information she received through dis

covery. He also c

omplained because she failed to req uest a curative instructi on when at least four members of the j ury were exposed to his mug shots while he was being cross-examined.He said that she also failed to request a curative instructi on when he invoked his Fifth Amendment right while he was testifying and when a police officer made disparaging facial expressions during the petition er’s testimony.
The petitioner admitted that he had the opportunity during hi s testimony to say everything

he wanted to say about the shooting. However, he said that three suicide letters he had written should have been int roduced at his trial. H e explained that the three letters would have placed a letter that the state introduced at trial in context. 2 The petitioner also stated that he never talked to the attorne y who orally argued his direct appeal. Although the petitioner recalled that the atto rney sent him letters regarding w

hen his case was to be ar gued, the petitioner said that he did not know whether the attor ney incorporated his suggestions into the argument

.6 In making its ruling , the trial court div ided the petitioner’s all egations into four categories: ineffective assistance of counse l, errors of the trial court, jury instruction errors, and prosecutorial misconduct. W ith respect to the petitioner’s ineffective assistance of counsel claim, the trial court held that the petitioner failed t o establish that his counsel performed deficiently and prejud iced the outcome of the verdict.
Regarding the petitioner’s allegations of trial court error, the court held that some of the issues the petitioner raised were previously determined in his direct appeal and that petitioner waived some issues. The court noted th at the record supports the trial court’s appointment of counsel even tho ugh no formal indigency hearing was held.

The court also refused to grant post-conviction relief based on a lleged jury instruction errors and allegations of prosecutori al misconduct. The court concl uded that the jury instruction

errors did not rise t

o a constitutional level

so as to warrant postconviction relief. Rel ative to the petitioner’ s allegations of prosecutor ial misconduct, the court ruled that the petitio ner failed to demonstrate that he w as prejudiced by any of the alleged misconduct and that s ome of the petitioner’s allega tions of prosecutorial misconduct had been previousl y determined during his direct appeal.

I. DENIAL OF SENTENCING HEARING The petitioner contends that his constitutional rights were violated by

the trial court’s failure t

o hold a sentencing hearing . This court ruled again st the petitioner on this issue during hi s direct appeal. State v. Len Martucci , slip op. at 12. Accordingly, the i ssue has been previously determined and is not a proper ground for post-conviction reli ef. See T.C.A. § 40-30-311 (1990); House v. State , 911 S.W.2d 705 (Tenn. 1995), cert

. denied , 116 S. Ct. 1685 (1996).7 II. FIRST DEGREE MUR DER JURY INSTRUC TION The petitioner relies on State v. B rown , 836 S.W.2d 530, 543 (Tenn. 1992), to contend that his due pro cess rights were

violated by the jur

y instructions gi

ven at his trial regarding the elements of premeditation and deliberat ion. However, this court has refused to apply Brown ’s holdings retroacti vely, see , e.g. , Lofton v. State , 898 S.W. 2d 246, 250 (Tenn. Crim. App. 1994), and we refuse to do so in this case.

III. REASONA

BLE DOUBT JURY I NSTRUCTION Next, the defendant contends that the reasonable doubt instruction given at his trial violated his due process rights. The trial court gave the following reasonable doubt instruction at the petitioner’s trial:

The burden of proof rests upon the state to establish the guilt of the defendant beyond a reasonable doubt and a finding of guilt is not war

r anted unless this burden is s ustained. A conviction cannot be based on conjecture, s uspicion or a mere belief that the defendant is guilty of the crime charged. Each juror must find the defendant guilty beyond a reasonable doubt. Reaso nable doubt is not a mere possible do ubt because everything rel ating to human affairs is open tosome possible or imaginary doubt. I t is an honest doubt engendered afteran investigation of all the evidence and an inabili ty after such investigation to le t the mind r est easily as to the moral certainty of guilt. And this ce rtainty i s required as to every essential element of the crime ch a rged or included in the indictment. This is an adequate statement of the state’s bu rden of proof for criminal trials in Tennessee. See , e.g. , Nichols v. State , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263, 266 (Tenn Crim. App. 1995); Pettyjohn v. State , 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994); State v. Hallock , 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993). Thus, the use of this ins truction at the petitioner’ s trial did not amount to a violation of his due process rights.3 Asid e fro m th e pro sec utoria l mis con duc t claim s tha t the p etition er rais ed du ring h is direct appe al, t he petit ioner conte nds that t he state gave the trial court inco rrect i nformation about the petitioner, m ade inco rrect state men ts conc erning the petitioner’s fina ncial con dition, imp roperly plann ed to call t he petit ioner’ s retained attorney as a witness, faile d to supply the peti tioner wi

th discover

y, housed members of the jury, the vict im’s family , and the st ate witn esses together,allowed i nconsistenci es or hearsay in the testimony of some of the state’s witnesses, seated the victim’s friends and fam ily members close to t he jury, called an ex-employee of t he hotel wher e the peti tioner hadstayed t o testi fy rat her than calli ng a differ

ent hotelclerk, i mproperly quest ioned the def endant about hi s financi al condit ion, prof fered expert test imony on int oxicati on, credit

ed the state’s wit nesses and disparaged the defense wit nesses during i ts closi ng argument, misstate d the evide nce during cl osing argument, misst ated the l aw during closing ar

gument, prevented the defendant fr om receiving a sent

encing heari ng, and int roduced video tape s at th e hea ring o n the mo tion fo r new trial. 8

IV. JUDICIAL AND PROSECUTORIAL MISCONDUCT Next, the petitioner cont ends that his due process ri ghts were viola ted through judicial and pro secutorial misconduct. Al though the defendant phrases the issue in terms of both judicial and prosecutorial misconduct, he devotes most of his argument to allegations of pr osecutorial misconduct. M any of the prosecutorial misconduct claims that the peti tioner raises are not pr oper grounds for post-conv iction relief because they wer e previously determi ned in his direct appeal. See State v. Len Martucci , slip op. at 10-12. With respect to the o ther prosecutorial misconduct allegations, 3 the petitioner has failed to demonstrate that the prosecutor’s actions were improper or that he was pr ejudiced by the alleged misconduct.
The allegations of judicial misconduct the petitioner r aises relate to the trial judge’s failure to recuse himself from presiding at the post-conviction hearing, the pretrial bond tha t the tria l court set and the t rial court ’s failur e to give a cu rative instruction after the prosecuting attorney disobey ed a court ruling about r emoving mug shots from a police report before the report was used to impeac h the petitioner. The petitioner is not entitled to relief on any of these claims.

The petitioner contends that the trial judge should have recused h imself from presiding over the post-conviction hearing. He asserts that the trial judge’s impartiality at the post

-conviction hearing

might reasonably be q uestioned because the judge had personal knowl edge of disputed evidentiary facts. Although the judge had9

been subpoenaed to testify at the post -conviction hearing , he quashed the subpoena because he concluded that the matters alleged in the post-conv iction petition could be addressed by other wi

tnesses and evidence wi thin the court record. The peti tioner has failed to offer any proof on this issue other tha n the fact that the judge presided at his trial. Under these circumstances, we cannot say that the trial judge abused his discretion by refusing

to recuse himself from presiding over the post-convi ction hearing.
The petitioner’s complaints abo ut excessive pretr ial bond are not proper grounds for post-conviction relief as presented. This court rejected the petitioner’s claim that his bail w

as excessive in hi s direct appeal. State v. Len Martucci , slip op. at 3. Moreover, p

ost-con victi on reli ef is only avai lable w hen the a bridge ment of a constitutional right c

auses a defendant’s conviction or sentence to be void or voidable. See T.C.A. § 40-30-105. An exce ssive pretrial bond do

es not, by itself, make a defendant’s conviction or s entence void or voidabl e and thus is not a basis for postconviction relief. The peti tioner fails to show both h ow his bond was ex cessive and how he was prejudiced in the case as a result of his bond.

Also, we do not believ

e that the petitioner is entitled to post-convicti on relief based on the trial court’s failure to give a curative instruction. The trial court scolded the prosecuting att orney when it reali zed that the report she handed the petitioner to impeach him had the petitioner’s mug shots att ached to it. When the prosecuting attorney o

ffered to remove them, the trial c ourt told her that he did not w ant them removed where they could be seen. The trial cour t then ordered the prosecutor to give it the report a nd to move on to something els e. The record does not reveal how many jurors, if any, ac

tually saw the photog raphs, although the petitione r stated at the post-conviction hearing that at least four jurors could have seen them. Under such circumstances, we are unable to say that a curative instruction was necessary. Thus, post-conviction reli ef on the issue is not warr anted, because the trial court ’s failure to10

give a curative instruction did not amount to a violation of the petitioner ’s constitutional rights that would make

his conviction or s

entence void or voidabl e.

V. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that he rec eived the ineffective assi stance of counsel. Under the Sixth Amendment, when a claim of ineffectiv e assistance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel's performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct.838, 842-44 (1993). The Strickland standard has been applied, as w ell, to the right to counsel under Article I, Section 9 of the Tennessee Constituti on, State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989) , and to the right to appell ate counsel under the Fourteenth Amendment. Campbell v. State , 904 S.W.2d 594, 596 (Tenn. 1995); see Evitts v. Lucey , 469 U.S. 387, 105 S. Ct. 830 (1985).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel's conduct, a "fair asses sment of attorney performance req uires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to ev aluate the conduct from counsel's perspective at the time." Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982) (counsel's conduct will4 The petiti oner contends t hat his appoi nted counsel was i neffecti ve in her pr etrial work on the case because she ref used to wit hdraw from representi ng him, fail ed to secure a bond hea ring and an indigency

hearing, failed to invest igate hi s indigency status, f

ailed t o procure expert

testi mony regarding intoxi cation, faile d to adequatel y prepare t

o cross-examine the st ate’s wi tnesses, fai led to pr ovide the defe nda nt with copie s of p roof obta ined t hrou gh dis cove ry, faile d to th orou ghly inv estig ate th e crim e scene, fail ed to fil e interl ocutory app eals, fai led to advise the defendant about the at

torney- client

privi lege, ordered tran scripts of the pretrial hearings only fifteen days before trial , fail ed to fil e a motion for a change of venue, and f

ailed t o seek recusal of the trial judge.
The p etitioner con tends tha t his coun sel was ineffective at trial becau se she failed to effe ctively c ross -exa min e the state ’s witn ess es, fa iled to requ est s tatem ents ma de by t he st ate’s witnesses befor

e cross-examining t hem, failed t o consult with the defend ant to see if he wanted her t o ask any more question s of the stat e’s wit nesses, fail ed to request curativ e instructions or pol l the j ury after the jury was i mproperly exposed t o the peti tioner’ s mug shots, fail ed to request other curat ive inst ructions, and failed to obje ct to the trial judg e’s participa tion in the introd uction of a photogr aph of th e victim. W ith respec t to his appe llate couns el, the petitione r conten ds that his couns el was ine ffective fo r failing to disclose pol ice contact with a wi tness, fai ling t o file affidavi ts of complaint

against t he trial

judge, t he assistan t attorney ge neral and the cour t clerk, an d beca use the petitioner did n ot have a dequa te participation in the appe al. 11 not be measured by "20-20 hindsight"). Thus, the fa ct that a particular strategy or tactic failed o r even hurt the def ense doe s not, alo ne, supp ort a claim of inef fective assistance. Deference is made t o trial strategy o r tactical choices if they are informed ones based upon adequate preparati on. See Hellard v. State , 629 S.W.2d at 9; United States v. DeCoster , 487 F.2d at 1201.

Also, we note that the approach to the issue of the inef fective assistance of counsel does not have to start with an analysis of an attorney's conduct. If pre judice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland v. Washington , 466 U.S. at 697, 104 S. Ct. at 2069.

Although the petitioner raises numerous claims of inef fective assistance of counsel, 4 he has failed to establish that h is attorneys were deficient or that he was prejudiced by any of the al leged deficiencies. Thus, he i s not entitled to post-conv iction relief on this ground.

VI. DENIAL OF CHOICE OF COUNSEL The petitioner contends that his due process rights were violated because he was denied his choice of counsel. He argues that the trial court erred by

appointing12

the public defender to represent hi m at his trial without holding an indigency

hearing. The petitioner’s complaint about the trial court’s failur e to hold an indigency hea ring was previously determin ed in his direct appeal. State v. Len Martucci , slip op. at 12. Moreover, the attorney the petitioner initiall

y retained to represent h im properly withdr ew after he concluded that he may be ca lled to testify against the petitioner. See Tenn. Sup. Ct. R. 8, DR-502. The petitioner is not entitled to post-conviction relief on th is ground.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge CONCUR:
John H. Peay, Judge
David G. Hayes, Ju dge