# FILED
October 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON APRIL 1997 SESSI ON

ROYCE LEE “DINO” LANE ) ) No. 02C01-9604-CC-00133 Appellant, )

) Dyer County v. ) ) Honorable Joe G . Riley, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Vanedda Prince Charles W. Burson P.O. Box 26 Attorney General of Tennessee Union City, TN 38281 and Clinton J. Morgan Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General and James E. Lanier Assistant District A

ttorney General 113 S. Mill Ave. P.O. Box E Dyersburg, TN 38024

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Royce Lee “ Dino” Lane, appeals as of rig ht from the Dyer County Circuit Cour

t’s denial of post-convic tion relief after an evidenti ary hearing. The petitioner is presently

in the Department of Correcti on serving an effective s entence of twenty-six y

ears for his 1991 convicti ons for second degree murder, c riminally neglig ent homicide and unlawful possess ion of a firearm during the commis sion of the second degree murder. The petitioner contends that he received the ineffective assistance of trial counsel, that his d ue process rights w ere violated because the j ury was allow ed to see him in shackles, and that the reasonable doubt jury i nstruction allowed the jury to
co nv ic t h im ba se d o n a

lo we r s ta nd ar d of p ro of

th an is co nsti tu ti on al ly

re qu ir ed . We affirm the judgment of the trial cour t.
In 1991, the petitioner was convicted of second degree murder, criminally negligent homicide and unl awful possession of a firearm dur ing the second degree murder. The peti tioner was sentenc ed as a Ran ge I, stan dard off ender to consecut ive sentences of twenty-two years, two years and two years, respectively. This court affirmed his conviction. State v. Royce Lee “D ino” Lane , No. 02-C-01-9102-CR- 00011, Dyer County (Tenn. C rim. App. Jan. 29, 1992), app . denied (Tenn. May 26, 1992) (concurring in res ults only).

On April 20, 1995, the petitio ner filed a pro se petition for post-convic tion relief. Counsel was appoi nted, and the petition was amended.The petition alleges that the petitioner received the ineffective assistance of couns el at trial because counsel failed to conduct a prompt inves tigation of the facts and interv iew and subpoena witnesses. It alleg es that counsel was ineffectiv e because when he learned that the preliminary hearing

tape was inaudible, he fail ed to secure for impeachment purposes the testimony of Darren Dev ault, a newspaper reporte r who was present at the3

prelimin ary hearin g. The pet ition alle ges that c ounsel was ineffe ctive by fa iling to mo ve to withdraw as petitioner’s counsel in order to testify as a witness to the preliminary hearing t estimon y. The pet ition cla ims that trial and appellat e counse l were inef fective for failing to preserve and to raise on appeal the issu e of whether the petitioner w as denied due process of law by being exposed to the jur y while weari ng shackles. The petition alleges that the reasonable doubt instruction allowed the jury to convict him based on a lesser standard of proof tha n constitutionally re quired.
At the post-conviction h earing, Marty Tay lor testified that he sat as a juror on the petitioner’s case. He stated that he saw the petitioner in shackles but he could not remember the time or the duration that the pe titioner was in the shackles. He said that he did not know why the petitioner was in shackles but that it had no bearing on his decision as to the petitioner ’s guilt or innocence.He stated that he did not beli eve that the shackles were discussed during deliberations. He did not recall the trial court asking him whether he saw the petitioner in shackles.

Gloria Brady, a juro r on the petitioner’s case , testified that she believe d that she saw the petitioner in shackles. She did not r ecall the trial court di scussing the shackles with the jur

y. She said that the shack les would not have affected her decision relative to the petitio ner’s guilt or innoc ence. She stated that the shackl es were not mentioned during deliberati on.

Lisa Wheeler testified th at she was working as a convenience store clerk in Finley, Tennessee, at the time of the offenses. She stated that she remember ed a black man coming into the stor e at night asking for dir ections to return to Forr est Street in Dyersburg. She said that the man was drunk and disoriented. She said that the man’s pants were torn and hi s hands and arm had blood on them. She te stified that4

the petitioner’s attorney did not contact her about the in cident. She stated that she received a letter from the petitioner in 1994 asking her about the incident.

On cross-examination, M s. Wheeler testified that she could not state for sure that the petitioner w as the person she saw that night. On redirect ex amination, she stated that she connected the i ncident to the petitioner after r eading about the offenses in the paper. She said that sh e did not report the incident.

The petitioner’s trial counsel testified that he could not recall specifically whether the jurors saw the petitioner wearing shackles or whether he objected. He said that the trial court ordinarily placed a box around defense table to shield f rom the jury’s view shackles worn by a defendant. The petitioner’s counsel testified that he an d his investigator met w

ith the petitioner many ti mes before trial. He said that he called as defense witnesses all of the people requested by the petitione r. He said that he would not have hesitated to contact other witnesses had the petitioner no tified him of their existence. He said that the petitioner told him that he had stoppe d at a convenience store for directions. Coun sel could not remember wheth er he had contacted anyone from the store, but he conceded that he did n ot interview anyone that worked for a store.
Counsel testified that the petit ioner told him that he had sustai ned an injury to his hand during a fight with Michael Holder, the victim of the criminally negligent homicide. He said that he reviewed the petitioner’s medical records. He conceded that he did not depose the peti tioner’s treating phy

sician, although the medical evidence could hav e corroborated the petitioner ’s testimony that he had been injured in a fight with Holder and that the petition er acted in self-defense.5 Regarding the prelimi nary hearing tape, the petitioner’s counsel testified that at trial, Bernard Cor k testified that he had heard a hosti le conversation betw een the petitioner and Edward Den nis, the second degree murder victim, and that the petit ioner told Dennis before shooting him, “You’re going to get it, you punk.” He said that Cork was a key state w

itness because he was the on ly eyewitness of the shooting of Dennis. Counsel testified that he intended to introduce the preliminar y hearing tape for impeachment purposes to show th at Cork had made a prior inc onsistent statement at the preliminary hearin g that he had not heard any of the conversation between th e petitioner and Dennis. He said that he learned that the tape was inaudible, and he tri ed to subpoena Darren Devault, a news reporter who was present at the preliminary hearing. He said that Devault had told the petitioner that he remembe red Cork testifying at the preliminary hearing that he had not heard any of the conversation. He stated t hat whe n he cont acted De vault, Devault agreed to come to cour t and to t estify accordingly. Counsel testified that Devault did not testify at trial because he invoked his reporter privilege and the procedure for obtaining his testimony was not followed. He said that given Dev

ault’s cooperation, he did not believe it necessary

to follow the statutory requirements for securing testimony of a news reporter. He stated that he did not consider withdraw

ing as the petitioner’s

counsel in order to testify on his behalf.
Relative to the petition er’s medical records, c ounsel testified that he questioned the petitioner on direct examination about hi s injuries. The petitioner testified that on the night of the offenses, he had been in a fight with H older and had broken his hand when he hit Holder on the head. He said that he broke two knuckles and dislocated a knuckle, r equiring that he we

ar a cast for five weeks . The petitioner was not cross-exami ned about his injuries.

The petitioner testified that he r emembered wearing shackl es in front of the jury, but he could not recall at what point i t occurred. He conceded that it was not6

the entire trial. He st

ated that counsel told him to keep his feet still while he was wearing the shackles . He said that there was no box around the table w here he was sitting. The petitioner a cknowledged that the tw o jurors who saw him in shackles stated that it did not have any effect on their guilty v erdict.
The petitioner stated that he told his counsel that he had gone to a convenience store after shooti ng Holder. He conceded tha t he had told counsel that he did not know the name or the ex act location of the store because he was lost and upset. He said that he told c ounsel that he had asked for direc tions to get back to Dyersburg to Forrest Street. He stated that he gave to counsel the directions that were given to him by the female clerk at the store. He be lieved that the store coul d be located by following

the directions in rev

erse order. The petitioner c ould not remember the exact directions given to him by the clerk and he could not find the store again. He said that he learned of the name of the stor e approximately three y ears after trial when church members visited hi m in jail. The petitioner te stified that he gave his c ounsel the names of the witnesses that were called to testify in his behalf. Regarding his injuries, the petitioner testified that he told his counsel about the inj ury to his hand and that he had been treated at Dyersbur g Hospital.
Lyman Ingram, the prosecutor at the petitioner’s trial, testified tha t he did not remember much about the petitioner ’s trial. He conceded th at it was possible that the jury saw the peti

tioner in shackles w

hen the jury returned a v erdict because the petitioner was probably shackled during deliber ations. He did not remember w hether an objection was made reg arding the petitioner w earing shackles. He s

tated that the trial court was genera lly very conscientious a bout the issue of the jury seeing a defendant wearing shackles.7 Wanda Pachall, a court reporter testified tha t she recorded the trial proceedings. A portion of the tape was played for the cou rt relative to the pol ling of the jurors regarding whether they saw the petitioner in shackles . The tape reflects that the petitioner was wear

ing shackles during

jury deliberations. During jury del iberations, the jury returned to the cour troom to ask a question. After the jury left the courtr

oom, the petitioner’s counsel advised the trial court that the petitioner was wearing shackles in the presence of the jury. The tr ial court responded that the i ssue would be dealt wi th after the jury rendered it s verdict. The tape show s that following the re ndering and the acceptance of the verdict, the trial court asked the jur ors under oath whether they had seen the petitioner weari ng shackles. Initiall y, no jurors responded affir matively. When individually q uestioned, Juror Mark F air answered “Yes, ” but stated that neither he nor any other juror discu ssed it during deliber ations. The juror stated that seeing the petitioner in shackles di d not affect his decision that the peti tioner was guilty

of the crimes. Jurors Taylor and Brady responded negatively when asked by the court whether they saw the petitioner in shackles

.

At the conclusion of the hearing , the trial court denied pos t-conviction relief. It concluded that the pet itioner had failed to show that he was entitled to post
conviction relief based on a claim of ineffective assistanc e of counsel. It determined that the petitioner advis ed counsel that he had been to a conv enience store, but the petitioner did not know the name of the store or where the store was located. The tr ial court held that counsel could not be faulted for failing to disc over a potential witness. It determined that counsel’s perfor mance was not deficient giv en the fact that he called approximately fifteen witnesses to testify on behalf of the petitioner and called all potential witnesses sug gested by the petitioner

.

Relative to the claim of i neffective assistance of counsel for failing to introduce the medical recor ds, the trial court concl uded that the petitioner had failed t o8

establish prejudice because other proof was introduced regarding his hand inj ury. It determined that the petitioner te stified at trial that he had br oken his hand during a fight with the victim, and the petitioner’s testimony was not contradicted. The trial court held that the petitioner had failed to es tablish prejudice as a r esult of trial counsel’s fail ure to obtain the testimony of the new s reporter. It determined that the petitioner did not show that the news reporter’s testimony would have impeached Cork’s testimony. It also held that counsel was not deficient for not moving to withdraw as counsel.

The trial court also held that the petitioner was not entitled to postconviction relief based on his claim of ineffective assis tance of trial and appellate counsel for failing to rais e on appeal the claim that the petitioner’s due process ri ghts were violated w

hen the jury saw him w earing shackles. It found th at while the jury was deliberating, leg restraints were placed on the petitioner. It determined that the jury returned to the courtroom to as k a question, and unknown to the court, the shackles remained on the petitioner. The cou rt stated that when asked und er oath, one juror stated that she had seen the petiti oner in shackles but that it was not discussed dur ing deliberations and that it had n o effect on her guilty ve rdict. The court held that appellate counsel was not deficient for failing to rais e the issue on appeal because the petitioner had failed to show a reasonable probability that the issue would hav e had merit on appeal.

The court denied post-convi ction relief based on the petiti oner’s claim that the reasonable doubt jury i nstruction violated hi s due process rights. It held that the reasonable doubt jury ins truction was a proper statement of the law.

I. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that he rec eived the ineffective assi stance of counsel. He argues that counsel provided ineffective assistance by (1) failing to secure9

the testimony of a news repo rter after learning that the preliminary hearing tape was inaudible and failing to w ithdraw as counsel to t

estify on the petitioner’s behalf, (2) failing to investig ate and present evidence that o n the night of the shootings, the petitioner stopped at a conv enience store to ask for directions, and (3) failing to investigate and to present medical proof of the petition er’s injury to his hand and arm that occurred during an al tercation with the v

ictim. The state responds that the petitioner has failed to establ ish either deficient performance o r prejudice. We agree.

The burd en was on th e petitio ner in the trial cour t to prove b y a preponderance of the evidence the fact ual allegations that w ould entitle him to relief. Brooks v. State , 756 S.W.2d 288, 28 9 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial court's findings of fact unless the evidence in the record preponderates against those find ings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

In this respect, when a c laim is made of the ineffective assi stance of counsel under the Sixth Amendment , the burden is upon the petition er to show (1) that counsel's performance w as deficient and (2) that the deficienc

y was pre

judicial i n terms of rendering a reasonable prob ability that the result 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).

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 criminal10

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 , 466 U.S. at 689, 104 S. Ct. at 2 065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not, alone, suppo rt a claim of ineffective assistance. Deference is made to trial strateg

y or tactical choic

es if they are informed ones based upon adequate preparation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

Relative to the claim of i neffective assistance of counsel for failing to investigate and present evidence that the petitioner stopped at a convenience stor e on the night of the offenses to ask for dir ections, we hold that couns el’s performance was not deficient. We agree with the trial court’s conclusion that counsel cannot be faulted for failing to locate a potenti al witness when the petitioner could not remember the name of the store, the location of the sto re, or the directions to the store.

Relative t o the rem aining cla ims of in effect ive assista nce of co unsel, we need not determine whether couns el’s performance was defici ent because the petition er faile d to esta blish pre judice. T he appro ach to th e issue of the inef fective assistance of counsel does not hav e to start with an analy sis of an attorney's conduct

. If prejudice is not shown, we need not seek to determine the validity of the all egations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069. At the post-conviction hearing, the petitioner did not establish that either the ne ws reporter’s testimony or the petitioner’s counsel’s testimony would have impeached Cork’s11

testimony given at t rial. Thus, no prejudice has been shown. The petitioner al so failed to establish prejudice from c ounsel’s failure to introduc e medical evidence of his inj uries because evidence of his injur ies was introduced thr

ough other means, and the evidence was not contr adicted. We conclude that the petitioner did n ot receive the ineffective assistance of counsel

.

II. DUE PROCESS VIOLA TION The petitioner asserts that the trial court erred by

holding that the exposure of the petitioner to the jury while w earing leg restrai nts violated his due process rights. We note that the issue as raised by the pe titioner on appeal is subject to waiver because it was not raised on dir ect appeal. See T.C.A. § 40-30-112(b)(1) (repealed 1995); House v. State , 911 S.W.2d 705, 714 (Tenn. 1995). However,the petitioner raised the clai m in his petition as one rel ating to the ineffective assi stance of appellate counsel for failing to raise the issue, and the tr ial court addressed the is sue as such. Th erefore , we will also a ddress th e issue as a claim rel ating to t he ineff ective assistance of appellate counsel.

In Willocks v. State , 546 S.W.2d 819 (Te nn. Crim. App. 1976), this court held that there is a legal presumption against the neces sity of in-court phy

sical restraint and that the burden falls on the state to make a clear showing of the necessity for such restraint. Id . at 821-22. Shackling i s considered inherently prejudicial to the defendant unless there is a clear showing of necessity

. Id . at 822. In this respect, the trial court (1) should conduct a hearing , (2) must state upon the recor d its reasons for ordering physical restraints , and (3) must give adeq uate instructions that the r estraint of the defendant should in no way affect thei r decision. Id . Shackles must be the least drastic security meas ure reasonably to suffice. Id . Constitutional harmless error analysis applies w

hen a defendant’s due process rig hts are violated by the use of incourt physical restr

aints. State v. Thompson , 832 S.W.2d 577, 582 (Tenn. Crim. App. 1991).12 Initially, we note that at the time of the trial, counsel was only made aware of one juror who acknowl edged seeing shackles. That juror stated that it w as not discussed during delibe rations and had no effect upon his indi vidual verdict. Our assessment of counsel’s conduct should not be viewed in hindsight in terms of there now being three juror

s who say they saw

leg restraints on the petitioner. Given w hat was known to counsel at the time of the trial, we do not believe it was deficient performance not to pursue this is sue on appeal.
In this respect, we al so agree with the tr ial court’s conclusio n that the petitioner failed to show a reasonable probability that the issue would hav e had merit on appeal. The shackling of the petitioner in the presence of jurors occurred only for a short period of time whil e the jury was deli berating. When the jury returned to the courtroom to ask a question , one to three jurors saw the petitioner wearing

leg restraints. Howev

er, each juror stated under oath that the physical res traints were not discussed during jury deliberation, and each juror said that the shackling did not aff ect his or her individual

decision regarding the guilt of the petitioner. Under all of the circumstances existi ng at the time of the trial and pr esently, we conclude that the juror or jurors view

ing the petitioner shackl ed for a short period of time wh ile the jury was deliberating was har

mless beyond a reasonable doubt.We conclude that the petitioner did not receive the ineffectiv e assistance of counsel by c ounsel’s failure to raise the issue on appeal.

III. REASONA BLE DOUBT JURY I NSTRUCTION The petitioner asserts that the reasonable doubt instructio n given by the trial court allowed the jury to convict him based upon less proof than constitutionally required. The trial cou rt gave the followi ng reasonable doubt instruc tion at the petitioner’s trial: T he state ha s the bur

den of pro

ving t he guilt of th e defendant beyond a reasonable doubt, and this burden never shifts but remains on the state throug hout the trial of the case. The defendant is not required to pr ove his innocence.13 Reasonable do ubt 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 certa inty of guilt. Reasonable doubt d oes not mean a captious, possible, or imaginary doubt. Absolute certainty of g uilt is not demanded by the law to conv ict of any criminal char ge, but moral certainty is req uired as to every proposition requisit

e to constitute the offense. See T.P.I. - Crim. 2.03 (3d ed.) . This is a correct stat ement of the burden of proof required for criminal t rials in Tennessee. See Hardin v. State , 210 Tenn. 116, 355 S.W.2d 105 (1962); 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). Therefore, the instruction w as properly giv

en, and the use of the instruction did not violate the petitioner’s due proce ss rights.

In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge CONCUR:
David G. Hayes, Ju dge
William M. Barker, Special Judge