FILED

APRIL 23, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

1 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

2 AT KNOXVILLE 

3 MAY 1997 SESSION

4

5 WILLIE BACON, JR., )

6 )

7 Appellant, ) No. 03C01-9605-CR-00203

8 )

9 ) Hamilton County

1 0 v. ) 

1 1 ) Honorable Douglas A. Meyer, Judge 

1 2 )

1 3 STATE OF TENNESSEE, ) (Post-Conviction)

1 4 ) 

1 5 Appellee. )

1 6

1 7

1 8 For the Appellant: For the Appellee:

1 9

2 0 Ardena J. Garth Charles W. Burson

2 1 District Public Defender Attorney General of Tennessee

2 2 and and

2 3 Donna Robinson Miller Michael J. Fahey, II

2 4 Assistant Public Defender Assistant Attorney General of Tennessee 

2 5 Suite 300, 701 Cherry Street 450 James Robertson Parkway

2 6 Chattanooga, TN 37402 Nashville, TN 37243-0493

2 7

2 8 William H. Cox, III

2 9 District Attorney General

3 0 and

3 1 C. Leland Davis

3 2 Assistant District Attorney General

3 3 City-County Building

3 4 Chattanooga, TN 37402

3 5

3 6

3 7

3 8

3 9

4 0

4 1 OPINION FILED:____________________

4 2

4 3

4 4 AFFIRMED

4 5

4 6 Joseph M. Tipton

4 7 Judge

4 8

4 9

5 0

5 1

5 2

5 3

5 4
2

5 5 O P I N I O N

5 6

5 7 The petitioner, Willie Bacon, Jr., appeals as of right from the Hamilton

5 8 County Criminal Court’s denial of post-conviction relief after an evidentiary hearing. He

5 9 contends that he is entitled to post-conviction relief because the reasonable doubt and

6 0 malice instructions given at his trial violated his due process and equal protection rights

6 1 and because he received the ineffective assistance of counsel. We disagree and affirm

6 2 the judgment of the trial court.

6 3

6 4 In 1989, the petitioner was convicted of first degree murder and received

6 5 a sentence of life imprisonment. This court affirmed his conviction. State v. Willie

6 6 Bacon, Jr., No. 1164, Hamilton County (Tenn. Crim. App. Aug. 4, 1992), app. denied

6 7 (Tenn. Dec. 14, 1992). The petitioner filed the present petition for post-conviction relief

6 8 on May 13, 1994.

6 9

7 0 A transcript of the petitioner’s trial is the only evidence that was introduced

7 1 at the evidentiary hearing on his post-conviction petition. At the hearing, the petitioner’s

7 2 attorney argued that the malice and reasonable doubt jury instructions given at the

7 3 petitioner’s trial violated his constitutional rights. She also argued that the petitioner

7 4 received the ineffective assistance of counsel because his trial counsel failed to object

7 5 to the state’s closing argument, failed to object to the reasonable doubt and malice jury

7 6 instructions, and failed to challenge the sufficiency of the convicting evidence on

7 7 appeal. 

7 8

7 9 In its order denying the petition, the trial court stated that the reasonable

8 0 doubt and malice jury instructions did not violate the petitioner’s constitutional rights and

8 1 that the petitioner did not receive the ineffective assistance of counsel. Specifically, the

8 2 court found that the petitioner’s counsel made a tactical decision not to object during
3

8 3 the state’s closing argument. The court also stated that although the petitioner’s

8 4 counsel did not challenge the sufficiency of the convicting evidence, this court

8 5 examined the convicting evidence and concluded that the evidence sustained the

8 6 conviction.

8 7

8 8 I. REASONABLE DOUBT JURY INSTRUCTION

8 9 The petitioner contends that he is entitled to post-conviction relief

9 0 because the use of the term “moral certainty” in the reasonable doubt jury instruction

9 1 given at his trial allowed the jury to convict him based on a lower standard of proof than

9 2 is constitutionally required. We disagree. 

9 3

9 4 The following instruction was given at the petitioner’s trial:

9 5 Reasonable doubt is not that doubt that may arise from

9 6 possibility, but is that doubt engendered by an investigation of

9 7 all the proof in the case and an inability, after such

9 8 investigation, to let the mind rest easily upon certainty of guilt.

9 9 Absolute certainty of guilt is not demanded by the law to

100 convict of a criminal charge, but moral certainty is required as

101 to every proposition of proof requisite to constitute the offense.

102

103 This is a correct statement of the burden of proof for criminal trials in Tennessee. See

104 Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266

105 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App.

106 1994). Thus, the instruction did not violate the petitioner’s constitutional rights.

107

108 II. MALICE JURY INSTRUCTION

109 Next, the petitioner contends that the trial court's jury instruction regarding

110 malice violated his due process rights. See Sandstrom v. Montana, 442 U.S. 510, 99

111 S. Ct. 2450 (1979); State v. Bolin, 678 S.W.2d 40, 45 (Tenn. 1984). The trial court

112 gave the following instruction at the petitioner’s trial:

113 Malice is an intent to do injury to another, a design

114 formed in the mind of doing mischief to another.

115 Malice may be express or implied. Express malice is

116 actual malice against the party slain and exists where a person
4

117 actually contemplates the injury or wrong he inflicts. Implied

118 malice is malice not against the party slain, but malice in

119 general, or that condition of the mind which indicates a wicked,

120 depraved, and malignant spirit, and a heart regardless of social

121 duty and fatally bent on mischief. Implied malice may be found

122 to exist where the wrongdoer did not intend to slay the person

123 killed but death resulted from a consciously unlawful act done

124 intentionally and with knowledge on the wrongdoer’s part that

125 the act was directly perilous to human life. In this event, there

126 is implied such a high degree of conscious and willful

127 recklessness as to amount to that malignity of heart

128 constituting malice. 

129

130 As with other issues, the question of malice may be

131 decided from direct or circumstantial evidence, or both. It is for

132 the jury to decide under all the facts and circumstances of the

133 case whether malice was present in the slaying.

134

135 If a deadly weapon is handled in a manner so as to

136 make the killing a natural or probable result of such conduct,

137 the jury may infer malice sufficient to support a conviction of

138 murder in the first degree. But, again, this inference may be

139 rebutted by either direct or circumstantial evidence or by both

140 regardless of whether the same be offered by the defendant or

141 exists in the evidence of the state. . . .

142

143 Malice cannot be inferred from deadly intent only,

144 because the deadly intent may be justifiable under the law, as

145 where one willfully kills another to save his own life or to save

146 himself from great bodily harm and the danger is imminent and

147 immediate, or if it were sudden and upon reasonable

148 provocation the killing might or might not be manslaughter, but

149 it would not be murder.

150

151 You are reminded that the state always has the burden

152 of proving every element of the crime charged beyond a

153 reasonable doubt. A permissible inference may or may not be

154 drawn from an elemental fact from proof by the state of a basic

155 fact. However, all inferences permitted to be drawn may be

156 rebutted. Such permissive inference does not place any

157 burden of proof of any kind upon the defendant. 

158

159

160 In Sandstrom, the Supreme Court held that an instruction which effectively

161 tells the jury that they are to presume the existence of malice, when such is an element

162 of the offense, impermissibly shifts the burden of proof to the defendant. Sandstrom,

163 442 U.S. at 524, 99 S. Ct. at 2459. However, the trial court in this case did not instruct

164 the jury to presume the existence of malice. Taken as a whole, the instruction created

165 a permissive inference. See Bolin, 678 S.W.2d at 42-45; see also State v. James
1

For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f 

 proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).

5

166 Blanton, No. 01C01-9307-CC-00218, Cheatham County (Tenn. Crim. App. Apr. 30,

167 1996), app. pending (holding that a similar instruction did not violate Sandstrom). Thus,

168 the instruction did not violate the petitioner’s constitutional rights. 

169

170 III. INEFFECTIVE ASSISTANCE OF COUNSEL

171 Finally, the petitioner contends that he is entitled to post-conviction relief

172 because he received the ineffective assistance of counsel. The petitioner contends that

173 his counsel was ineffective for failing to object to the state’s closing argument, failing to

174 object to the malice and reasonable doubt instructions that were given at his trial, and

175 failing to challenge the sufficiency of the convicting evidence during his direct appeal. 

176 The state counters that the petitioner has failed to demonstrate that his counsel was

177 deficient and that he suffered any prejudice from the alleged deficiencies. 

178

179 The burden was on the petitioner in the trial court to prove his allegations

that would entitle him to relief by a preponderance of the evidence.1

180 Brooks v. State,

181 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial

182 court’s findings unless we conclude that the evidence preponderates against those

183 findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,

184 the petitioner has the burden of illustrating how the evidence preponderates against the

185 judgment entered. Id. 

186

187 Under the Sixth Amendment, when a claim of ineffective assistance of

188 counsel is made, the burden is upon the petitioner to show (1) that counsel's

189 performance was deficient and (2) that the deficiency was prejudicial in terms of

190 rendering a reasonable probability that the result of the trial was unreliable or the

191 proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

192 Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838,
6

193 842-44 (1993). Our supreme court has also applied this standard to the right to counsel

194 under Article I, Section 9 of the Tennessee Constitution, State v. Melson, 772 S.W.2d

195 417, 419 n.2 (Tenn. 1989), and to the right to appellate counsel under the Fourteenth

196 Amendment. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); see Evitts v.

197 Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985).

198

199 The petitioner contends that his attorney was deficient for failing to object

200 to the following remarks the prosecuting attorney made during the state’s closing

201 argument:

202 Mr. Bacon would have you believe that he simply

203 forgot, I guess. I guess it’s what you might term selective

204 amnesia. “Oh, yeah, I remember when he assaulted me. 

205 Oh, yeah, I remember falling through the door. Oh, yeah, I

206 remember dropping the knife. Oh, yeah, I remember

207 running away. Oh, yeah, I remember getting in the car.” 

208 Whoa, wait a minute. What about the 35 stab wounds? Oh,

209 is this the defense? Yes, I committed first degree murder,

210 but now I’ve forgotten about it. Okay, so you committed first

211 degree murder and you’ve forgotten about it. 

212 The trial court found that the petitioner’s attorney acted within the range of competence

213 demanded of defense attorneys when he made a tactical decision not to object to these

214 remarks. We agree with the trial court’s assessment. The petitioner has failed to

215 demonstrate that these remarks were improper or that he was prejudiced by them.

216

217 We also disagree with the petitioner’s contentions that his counsel was

218 ineffective for failing to object to the reasonable doubt and malice jury instructions that

219 were given at his trial. As previously discussed, the instructions given at the petitioner’s

220 trial were proper.

221 Finally, the petitioner contends that his counsel was ineffective for failing

222 to challenge the sufficiency of the convicting evidence during his direct appeal. The

223 state counters that the petitioner’s counsel acted competently when he made a tactical

224 decision not to challenge the sufficiency of the evidence. The state also argues that the
7

225 petitioner has failed to show that he was prejudiced by his counsel’s failure to present

226 the sufficiency of the evidence on appeal.

227

228 We agree with the state that the petitioner has failed to show that he was

229 prejudiced by his counsel’s failure to challenge the sufficiency of the convicting

230 evidence. When viewed in the light most favorable to the state, see State v. Cabbage,

231 571 S.W.2d 832, 835 (Tenn. 1978), the proof at trial showed that the petitioner asked a

232 friend to drive him to the victim’s home. Before they left for the victim’s house, the

233 petitioner changed clothes. The petitioner “tucked” his clothes in a manner that

234 indicated that he had something concealed under his clothes. After arriving at the

235 victim’s house, the petitioner entered the house, where he stabbed the victim during a

236 struggle. The petitioner continued to stab the victim after the victim exited the house. 

237 The petitioner stabbed the victim a total of thirty-five times, killing him. The proof at trial

238 indicated that the petitioner killed the victim as punishment or revenge related to an

239 unsuccessful drug transaction. 

240

241 Based on the proof presented at trial, the jury was justified in concluding

242 that the petitioner was guilty of first degree murder. Thus, the petitioner has failed to

243 demonstrate that his attorney was deficient for failing to challenge the sufficiency of the

244 evidence on appeal and has failed to demonstrate that he suffered any prejudice from

245 his attorney’s decision not to raise the issue.

246

247
8

248 In consideration of the foregoing and the record as a whole, we affirm the

249 judgment of the trial court.

250 

251 Joseph M. Tipton, Judge 

252

253

254 CONCUR:

255

256

257

258 

259 Joe B. Jones, Presiding Judge

260

261

262

263

264 

265 Curwood Witt, Judge 

266