# FILED

APRIL 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE 1 AT KNOXVILLE 2 MAY 1997 SE SSION 3

4 WILLIE BACON, JR., ) 5 ) 6 Appellant, ) No. 03C01-9605-CR-00203 7 ) 8 ) Hamilton County 9 v. ) 1 0 ) Honorable Douglas A. M eyer, Judge 1 1 ) 1 2 STATE OF TENNESSEE, ) (Post-Conviction) 1 3 ) 1 4 Appellee. ) 1 5 1 6 1 7 For the Appellant : For the Appellee : 1 8 1 9 Ardena J. Garth Charles W. Burson 2 0 District Public Defender Attorney General of Tennessee 2 1 and and 2 2 Donna Robinson Miller Michael J. Fahey, II 2 3 Assistant Public Defender Assistant Attorney Gener al of Tennessee 2 4 Suite 300, 701 Cherry Str eet 450 James Robertson Parkwa y 2 5 Chattanooga, TN 37402 Nashville, TN 37243-0493 2 6 2 7 William H. Cox, III 2 8 District Attorney General 2 9 and 3 0 C. Leland Davis 3 1 Assistant District A ttorney General 3 2 City-County Buil ding 3 3 Chattanooga, TN 37402 3 4 3 5 3 6 3 7 3 8 3 9 4 0 OPINION FILED:____________________ 4 1 4 2 4 3 AFFIRMED 4 4 4 5 Joseph M. Tipton 4 6 Judge 4 7 4 8 4 9 5 0 5 1 5 2 5 3 5 42 O P I N I O N 5 5

5 6 The petitioner, Willie Bacon, Jr., appeals as of right from the Hamilton 5 7 County Criminal Court’s denial of post-conviction relief after an evidentiary hearing. He 5 8 contends that he is entitled to post-conviction reli ef because the reasonable doubt and 5 9 malice instructions gi ven at his trial v

iolated his due process and eq ual protection rights 6 0 and because he received the ineffective assistance of counsel. We disagree and aff irm 6 1 the judgment of the trial court

. 6 2

6 3 In 1989, the petitioner was convicted of first degree murder and received 6 4 a sentence of life imprisonment. This court affirmed his convicti on. State v. Willie 6 5 Bacon, Jr. , No. 1164, Hamilton County (Tenn. Crim. App. Aug. 4, 1992) , app

. denied 6 6 (Tenn. Dec. 14, 1992). The petiti oner filed the present petition for post-conviction rel ief 6 7 on May 13, 1994. 6 8

6 9 A transcript of the petitioner ’s trial is the only

evidence that was introduced 7 0 at the evidentiary hearing on his post-conviction petition. At the hearing, the petitioner’s 7 1 attorney argued that the mal ice and reasonable doubt jury instructions giv

en at the 7 2 petitioner’s trial v iolated his constitutional rights. She also arg ued that the petitioner 7 3 received the ineffective assistance of counsel because his trial counsel failed to object 7 4 to the state’s closing argument, failed to object to the reasonab le doubt and malice jury 7 5 instructions, and failed to c hallenge the sufficiency of the c onvicting evidenc

e on 7 6 appeal. 7 7

7 8 In its order denying the petition, the trial court stated that the reasonable 7 9 doubt and malice jury ins tructions did not viol ate the petitioner’s constitutional rights and 8 0 that the petitioner did not receive the ineffective assistance of counsel. Specifically, the 8 1 court found that the petitioner’s counsel made a tactical deci sion not to object during 8 23

the state’s closing argument. The court also stated that although the petitioner’s 8 3 counsel did not challenge the sufficiency of the convicting evidence, this court 8 4 examined the convicting evidence and concluded that the evidence sustained the 8 5 conviction. 8 6

8 7 I. REASONA BLE DOUBT JURY I NSTRUCTION 8 8 The petitioner contends that he is entitled to post-convi ction relief 8 9 because the use of the term “moral c ertainty” in the reas

onable doubt jury instru ction 9 0 given at his trial allowed the jury t

o convict him based on a low er standard of proof than 9 1 is constitutionally required. We disagree. 9 2

9 3 The following instruction was given at the petitioner’s trial: 9 4 Reasonable doubt is not that doubt that may arise from 9 5 possibil ity, but is that doubt engendered by an inves tigation of 9 6 all the proof in the case and an in abili ty, after such 9 7 investigation, to let the mind rest easilyupon certainty of guilt. 9 8 Absolute certaint y of guil t is not demanded by the law to 9 9 convict of a criminal charge, but moral certainty is required as 100 to every proposition of proof requisite to constitute the offense. 101 102 This is a correct statement of the burden of proof for crimin al trials in Tennessee. See 103 Nichols v. State , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263, 266 104 (Tenn. Crim. App. 1995); Pettyjohn v. State , 8 85S. W. 2d 364, 36 6 (Tenn. Crim. App. 105 1994). Thus, the instruction did not violate the petitioner’s constitut ional rights. 106

107 II. MALICE JU RY INSTRUCTION 108 Next, the petitioner cont ends that the trial court's jury instruction r

egarding 109 malice violated his due p rocess rights. See Sandstrom v. Montana , 442 U.S. 510, 99 110 S. Ct. 2450 (1979); State v. Bolin , 678 S.W.2d 40, 45 (T enn. 1984). The trial court 111 gave the following instruction at the petitioner’s trial: 112 Malice is an intent to do injury to anoth er, a design 113 formed in the mind of doing mischief to an other. 114 Mal ice m ay be express or implied. Express malice is 115 actual malice against the party slain and exists

where a person 1164 actuallycontemplates the injury or wro ng he inflicts. Implied 117 malice is ma l ice not against the party slain, but malice in 118 general, or that conditionof the mind which indicates a wicked, 119 depraved, and malignant spirit,and a heart regardless of soci al 120 duty and fatal ly bent

on misch ief. Implied malice may be found 121 to exist where the wrongdoer did not int

end to slay the

person 122 killed but death resulted from a consciously unlawful act done 123 intentionally and with knowledge on the wrongdoer’s part that 124 the act wasdirectly perilous to human life. In this event, there 125 is implied such a high degree of conscious and wi llful 126 rec kle ssness as to amount to that malignity of heart 127 constituting malice. 128 129 As with other issues, t he question of malice may be 130 decided from direct or circumstanti al evidence, or both. It is for 131 the jury to decide under all the facts and circumstances of the 132 case whether mal ice was present in th e slaying. 133 134 If a deadly weapon is handl ed in a manner so as to 135 make the killing a natural or probable result of such c onduct, 136 the j ur y may infer malice sufficient to support a conviction of 137 murder in the first degree. But, again, thi s inference may be 138 rebutted by either direct or cir

cumstantial evidence or by both 139 regardless of whether the same be offered by the defendant or 140 exists in the eviden ce of the state. . . . 141 142 Malice cannot be inferred from de adl y intent on ly, 143 because the deadly intent may be j ustifiable under the law, as 144 where one willfully ki lls anoth er to save his own lif e or to save 145 himself from great bodily harm and the danger is imminent and 146 immediate, or if it were su dden an d upon reasonable 147 provocation the killing might or might not be manslaughter, b ut 148 it would not be murder. 149 150 You are reminded that the state alw ays hasthe burden 151 of proving every element of the crime ch arged beyond a 152 reasonable doubt. A permissible inference may or may not be 153 drawn from an elemental fact from pro of by the state of a basic 154 fact. However, all infer ences permitted to be drawn may be 155 r ebutted. Such permissive inferenc e does not pl ace an y 156 burden of proof of any kind upon the defendant. 157 158 159 In Sandstrom , the Supreme Court held that an instruction which effect ively 160 tells the jury that the y are to presume the existence of malice, when such i s an element 161 of the offense, impermissibly shifts the burden of proof to the defendant. Sandstrom , 162 442 U.S. at 524, 99 S. Ct. at 2459. However, the trial court in this case did not instruct 163 the jury to presume the ex istence of malice. Taken as a w hole, the instruction crea ted 164 a permissive inference. See Bolin , 678 S.W.2d at 42-45; see also State v. James 1651 For post-conviction petitions filed after May 10, 1995, petiti oners have the burden o f

proving factual all egations by clear and convincing evidence. T.C.A. § 40-30 -210(f). 5 Blanton , No. 01C01-9307-CC-00218, Cheatham County (Tenn. Crim. App. Apr. 30, 166 1996), app

. pending (holding that a similar instruction did not violate Sandstrom ). Thus, 167 the instruction did not v iolate the petitioner’s c

onstitutional rights. 168

169 III. INEFFECTIVE A SSISTANCE OF C

OUNSEL 170 Finally, the petitioner contends that he is entitled t o post-conviction rel ief 171 because he received the ineffecti ve assistance of counsel. The petitioner contends that 172 his counsel was ineffectiv e for failing to object to the s tate’s closing argu ment, failing to 173 object to the malice and reasonabl e doubt instructions that w ere given at his tr

ial, and 174 failing to challenge the s ufficiency of the convicting evidence during his direct appeal. 175 The state counters that the petiti oner has failed to demonstrate that his counsel was 176 deficient and that he suffered any prej udice from the alleged deficienci es. 177

178 The burden was on the petitioner in the trial court to pr

ove his allegations 179 that would entitle him to r elief by a preponderance of the ev idence. 1 Brooks v. State , 180 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal,we are bound by the tri al 181 court’s findings unless we conclude that the evidence preponderates against tho se 182 findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect, 183 the petitioner has the burden of il lustrating how the ev idence preponderates against the 184 judgment entered. Id

. 185

186 Under the Sixth Amendment, w hen a claim of ineffective assist ance of 187 counsel is made, the burden is upon the petitioner to sho w (1) that counsel's 188 performance was deficient and (2) that the deficiency w as prejudicial in terms

of 189 rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the 190 proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. 191 Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 369-72, 113 S. Ct.838, 1926

842-44 (1993). Our supreme co urt has also applied this s tandard to the right to couns el 193 under Article I, Section 9 of the Tennessee Constitution, State v. Melson , 772 S.W.2d 194 417, 419 n.2 (Tenn. 1989), and to the ri ght to appellate counsel under the Fourteenth 195 Amendment. Campbell v. State , 904 S.W.2d 594, 596 (Tenn. 1995); see Evitts v. 196 Lucey , 469 U.S. 387, 105 S. Ct. 830 (1985). 197

198 The petitioner contends that his attorney was deficient fo r failing to object 199 to the following remark s the prosecuting attorney made during the state’s cl osing 200 argument: 201 Mr. Bacon would have you believe that he simply 202 forgot, I guess. I gu ess it’s wha t you might term sele ctive 203 amnesia. “Oh, yeah, I remember when he assaulted me. 204 Oh, yeah, I remember falling through the door. Oh, y eah, I 205 remember dropping the knife. Oh,yeah, I remember 206 running away. Oh, yeah, I remember getting in the car.” 207 Whoa, wait a minute. What about the 35 stab wounds? Oh, 208 is this the defense? Yes, I committed first degree murder, 209 but now I’ve forgotten about it. Okay, so you committed first 210 degree murder and you’v e forgotten about it. 211 The trial court found that the petitioner’s attorne y acted within the range of competence 212 demanded of defense atto rneys when he made a tactical decision not to object to these 213 remarks. We agree with the trial court’s assessment. The petitioner has failed to 214 demonstrate that these rem arks were improper or

that he was

prejudiced

by them. 215

216 We also disagree with the petitioner ’s contentions that his couns el was 217 ineffective for failing to objec t to the reasonable doubt and malic e jury instructions

that 218 were given at his trial. As previously discussed, the instructions given at the petitioner’s 219 trial were proper. 220 Finally, the petitioner contends that his counsel w as ineffective for failing 221 to challenge the sufficiency of the convicting evidence during his direct appeal. The 222 state counters that the petiti oner’s counsel acted competentl y when he made a tactical 223 decision not to challenge the sufficiency of the evidence.The state also argues that the 2247

petitioner has failed to show that he was prejudiced by his counsel’s failure to p resent 225 the sufficiency of the evidence on appeal. 226

227 We agree with the state that the petiti oner has failed to show that he was 228 prejudiced by his couns el’s failure to challenge the sufficiency of the convic ting 229 evidence. When viewed in the li ght most favorable to the stat e, see State v. Cabbage , 230 571 S.W.2d 832, 835 (Tenn. 1978), the proof at trial show ed that the petitioner asked a 231 friend to drive him to the v ictim’s home. Before they l eft for the victim’s house, the 232 petitioner changed clothes.The petitioner “tucked” hi s clothes in a manner that 233 indicated that he had something c oncealed under his clothes. After arriving at the 234 victim’s house, th e petitioner en tered the hous e, where he stabb ed the victim durin g a 235 struggle. The petitioner continued to stab the victim after the victim exited the house. 236 The petitioner stabbed the vic tim a total of thirty-fiv

e times, killing him. The proof at trial 237 indicated that the petitioner killed the victim as punishment or revenge re lated to an 238 unsuccessful drug transaction. 239

240 Based on the proof presented at trial, the jury was j ustified in concluding 241 that the petitioner was g uilty of first degree mur der. Thus, the petitioner has fail ed to 242 demonstrate that his attorney was deficient for failing to challenge the sufficiency of the 243 evidence on appeal and has failed to demonstrate that he suffered any pr ejudice from 244 his attorney’s decision not to raise the issue. 245

246

2478 In consideration of the foregoing and the record as a whole , we affirm the 248 judgment of the trial court. 249

250 Joseph M. Tipton, Judge 251 252 253 CONCUR: 254 255 256 257 258 Joe B. Jones, Pre siding Judge 259 260 261 262 263 264 Curwood Witt, Judge 265 266